United States v. Flynn

58 M.J. 574, 2003 CCA LEXIS 74, 2003 WL 1400746
CourtArmy Court of Criminal Appeals
DecidedMarch 21, 2003
DocketARMY 20000588
StatusPublished

This text of 58 M.J. 574 (United States v. Flynn) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Flynn, 58 M.J. 574, 2003 CCA LEXIS 74, 2003 WL 1400746 (acca 2003).

Opinion

OPINION OF THE COURT

CHAPMAN, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of breach of the peace, and assault upon a person in the execution of military law enforcement duties, in violation of Articles 116 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 916 and 928 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to confinement for twenty-one months, but, pursuant to a pretrial agreement, suspended confinement in excess of fifteen months for six months.1 The case is before this court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

Appellant asserts that the 345-day delay between announcement of sentence and action is unreasonable, thus warranting sentence relief. See United States v. Collazo, 53 M.J. 721 (Army Ct.Crim.App.2000). He also maintains that his guilty plea to assault is improvident, because the victim was not a person who had, and was in the execution of, law enforcement duties. Although we find no merit in either argument, appellant’s second assignment of error warrants further discussion.

BACKGROUND

On 1 December 1999, while incarcerated at the United States Disciplinary Barracks (USDB),2 appellant witnessed an incident between a cook, Staff Sergeant (SSG) D, and Inmate C inside the USDB dining facility. Inmate C became angry after SSG D removed a piece of fish from Inmate C’s plate (instead of the two pieces of fish he was authorized, Inmate C had three). Words were exchanged, and Inmate C angrily sat down to eat at a table next to appellant. After Inmate C explained to appellant what had transpired between him and SSG D, appellant told Inmate C that SSG D was a racist and that Inmate C was treated poorly because he was white and SSG D was black. Another cadre member, Sergeant (SGT) L, overheard the inmates’ conversation and tried to explain to them that the incident was not racially motivated. Sergeant L then went over to the serving line and told SSG D what he had overheard. Staff Sergeant D, [576]*576apparently in a voice loud enough for others to hear, explained to SGT L that he served everyone equally and that it was important to serve only correct portions. Appellant took off his glasses, got up out of his seat, and asked SSG D if he was talking to him. Appellant then jumped over two metal railings separating the serving lines from the main dining area and confronted SSG D. Staff Sergeant D attempted to talk to appellant, but appellant suddenly and without provocation punched SSG D in the mouth with his closed fist. Staff Sergeant D suffered three minor cuts to his lip. After witnessing the assault, a number of inmates got up from their seats and ran to the railing where the assault occurred. A cadre member immediately sounded an alert. Additional personnel arrived quickly at the scene and restored order.

During the providence inquiry, appellant admitted that he had no justification to strike SSG D. He acknowledged that he was not provoked, nor did he feel threatened by SSG D’s actions. Appellant stated that, at the time of the incident, he believed SSG D was performing the general law enforcement duties of maintaining custody and control of inmates. He assured the military judge that when he confronted SSG D, he knew that cooks at the USDB had the responsibility to maintain good order and discipline inside the facility. The military judge specifically inquired if appellant felt that SSG D’s actions, in any way, departed from the appropriate conduct required of law enforcement personnel under similar circumstances. Appellant replied that he did not.

According to a stipulation of fact agreed to by all parties to the court-martial: (1) all USDB personnel are required to attend a pre-service training course that outlines their duties and responsibilities; (2) “[a]ll military personnel who work in the USDB are considered cadre”; and (3) among other duties, SSG D had the duty to maintain custody and control of inmates within established guidelines, and was authorized to “write-up” inmates for misconduct and/or take an inmate’s badge (pending disciplinary action for the misconduct).

During a pretrial Article 39(a), UCMJ, hearing, trial defense counsel moved to dismiss the assault specification and charge. Defense counsel maintained that the evidence would not support a finding that SSG D was acting in a law enforcement capacity at the time of the assault. The military judge denied the motion. Although the record is less than clear, the parties apparently intended, and the military judge accepted, appellant’s subsequent conditional guilty plea to the assault charge and its specification. See Rule for Courts-Martial 910(a)(2).

DISCUSSION

We review a military judge’s acceptance of a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (1996). We will not overturn a military judge’s acceptance of a guilty plea unless the record of trial shows a substantial basis in law and fact for questioning the guilty plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991); see also United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

The government charged appellant, inter alia, with an assault upon a person in the execution of military law enforcement duties under part IV, paragraph 54b(3)(b) of the Manual for Courts-Martial, United States (2000 ed.) [hereinafter MCM\. Understanding the need to protect individuals in the execution of law enforcement duties, the President promulgated the increased punishment provisions of paragraph 54e(3)(b).3 The maximum imposable punishment for this type of assault is based on the enhanced penalty provisions of 18 U.S.C. §§ 111 and 1114.4 See MCM, app. 23, Analysis of Puni[577]*577five Articles, para. 54, at A23-15. The purpose of 18 U.S.C. § 111 is to fulfill Congress’s goals of protecting federal officers and facilitating the accomplishment of federal law enforcement functions. See United States v. Lopez, 710 F.2d 1071, 1073 (5th Cir.1983). Punishment for violations of such provisions “effectuates prison management and prisoner rehabilitative goals.” Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

To establish an adequate factual basis for acceptance of a guilty plea to such an assault, a military judge must ensure that there exists sufficient evidence that the victim of the assault was a person who then had, and was in the execution of, law enforcement duties.

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Related

United States v. Feola
420 U.S. 671 (Supreme Court, 1975)
Sandin v. Conner
515 U.S. 472 (Supreme Court, 1995)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Agustin Alvarez Lopez
710 F.2d 1071 (Fifth Circuit, 1983)
United States v. Joseph Hoffer
869 F.2d 123 (Second Circuit, 1989)
United States v. Roy Green
927 F.2d 1005 (Seventh Circuit, 1991)
United States v. Lawyer Lee Walker
202 F.3d 181 (Third Circuit, 2000)
United States v. Eberle
44 M.J. 374 (Court of Appeals for the Armed Forces, 1996)
United States v. Ginn
47 M.J. 236 (Court of Appeals for the Armed Forces, 1997)
United States v. Collazo
53 M.J. 721 (Army Court of Criminal Appeals, 2000)
United States v. Smith
56 M.J. 653 (Army Court of Criminal Appeals, 2001)
United States v. Roth
57 M.J. 740 (Army Court of Criminal Appeals, 2002)
Unite States v. King
29 M.J. 885 (U.S. Army Court of Military Review, 1989)
United States v. Prater
32 M.J. 433 (United States Court of Military Appeals, 1991)

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Bluebook (online)
58 M.J. 574, 2003 CCA LEXIS 74, 2003 WL 1400746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-flynn-acca-2003.