United States v. Hackler

70 M.J. 624, 2011 CCA LEXIS 371, 2011 WL 6415351

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: December 22, 2011
• Docket: NMCCA 201100323
• Status: Published

Opinions

PUBLISHED OPINION OF THE COURT

FLYNN, Judge:

A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of desertion and one specification of breaking restriction, violations of Articles 85 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 934. The appellant was sentenced to 120 days confinement, reduction to pay grade E-1, and a bad-conduct discharge from the United States Marine Corps. In accordance with the terms of the pretrial agreement (PTA), the convening authority approved the sentence as adjudged, but suspended all confinement in excess of 75 days.

Counsel assigned no errors. We specified the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THE COURT OF APPEALS FOR THE ARMED FORCES’ OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F.2011), IN THIS CASE, WHERE THE APPELLANT PLED GUILTY, ENTERED INTO A PRETRIAL AGREEMENT WITH THE CONVENING AUTHORITY, WAS PROPERLY INFORMED OF THE ELEMENTS OF THE OFFENSE—INCLUDING THE TERMINAL ELEMENTS—BY THE MILITARY JUDGE, DID NOT OBJECT AT TRIAL TO THE SPECIFICATION AS DRAFTED, AND ADMITTED TO ALL OF THE ELEMENTS OF THE OFFENSE DURING THE PROVIDENCE INQUIRY? Cf. United States v. Harvey, 484 F.3d 453 (7th Cir.2007); United States v. Cox, 536 F.3d 723 (8th [7th] Cir.2008); United States v. Awad, 551 F.3d 930 (9th Cir.2009).

We have carefully considered the record of trial, the parties’ briefs, and the matters presented during oral argument. We are convinced that in a case in which the appellant did not object at trial and pled providently, a specification alleging breaking restriction necessarily implies the terminal element of Article 134. We conclude that the findings and sentence are correct in law and fact and there was no error materially prejudicial to the substantial rights of the appellant. Arts. 59(a) and 66(c), UCMJ.

Facts

In December 2010, the appellant broke restriction by leaving his unit, traveling to his family’s home in Florida, and remaining absent until mid-February. When he returned, he was charged with, among other things, breaking restriction, an Article 134 offense. The specification read as follows:

In that Private First Class Jeremiah I. Hackler, U.S. Marine Corps, on active duty, having been restricted to the limits of place of mess, billet, duty and worship, by a person authorized to do so, did, at Marine Barracks 8th and I, Washington, D.C., on or about 5 December 2010, break said restriction.

The appellant did not object to the sufficiency of this specification either before or during trial. Pursuant to a PTA, he pled guilty to the specification at trial. During the providence inquiry, the military judge explained the elements of breaking restriction, including the requirement that the conduct was prejudicial to good order and discipline, or of a nature to bring discredit upon the armed forces.¹ The appellant acknowledged both the explanation from the military judge and his understanding of the elements. Furthermore, during the providence inquiry, the appellant acknowledged that his commanding officer’s decision to place him on restriction was connected to the commanding officer’s mandate to maintain good order and discipline; he also agreed that, by breaking restriction, he “defied the commanding officer’s orders,” and compromised the good order and discipline within the unit.²

Discussion

We review de novo whether a specification states an offense. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.2006). In order to state an offense, a specification must allege every element of the offense “either expressly or by necessary implication, so as to give the accused notice and protect him against double jeopardy.” United States v. Dear, 40 M.J. 196, 197 (C.M.A.1994) (citations and internal quotation marks omitted). Specifications alleging violations of Article 134 must therefore include the terminal element either explicitly or by implication. United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F.2011).

In Fosler, the Court of Appeals for the Armed Forces (CAAF) held that the terminal element in an Article 134 offense must be expressly alleged or necessarily implied by the language of the specification. The CAAF found that merely alleging “wrongfully” in the specification and listing it under Article 134 were insufficient to necessarily imply the terminal element. Id. at 230-31. However, the CAAF limited its holding to specific circumstances, stating “in contested cases, when the charge and specification are first challenged at trial, we read the wording more narrowly and will only adopt interpretations that hew closely to the plain text.” Id. at 230 (footnote and citation omitted). Foster also cites, by comparison, to the holding in United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A.1986), an earlier case that allows a more liberal interpretation of a specification first challenged on appeal.³ In Watkins, the Court of Military Appeals (CMA) stated:

Where, as here, the specification is not so defective that it “cannot within reason be construed to charge a crime,” the accused does not challenge the specification at trial, pleads guilty, has a pretrial agreement, satisfactorily completes the providence inquiry, and has suffered no prejudice, the conviction will not be reversed on the basis of defects in the specification.

Id. at 210. Thus, following Foster and Waf-kins, we view allegations of defective specifications through different analytical lenses based on the circumstances of each case. Where the specification was not challenged at trial, we liberally review the specification to determine if a reasonable construction exists that alleges all elements either explicitly or by necessary implication. Where the specification was challenged at trial, however, we review it by construing its wording narrowly, adhering closely to the plain text.

We now turn to the case at hand and examine the challenged specification to determine whether the terminal element was necessarily implied. Unlike Fosler, the appellant here did not object at trial; instead, pursuant to a PTA, he pleaded guilty to the offense at trial. Therefore, we are not constrained to an interpretation that “hew[s] closely to the plain text.” Fosler, 70 M.J. at 230. Instead, as in Watkins, we liberally review the specification to see if it “cannot within reason be construed to charge a crime.” Watkins, 21 M.J. at 210. Similar to Watkins, the military judge here explained to the appellant the elements of the offense, including the terminal element. The appellant did not express confusion or uncertainty; rather, he stated that he understood the elements as explained to him. He further acknowledged that his conduct undermined the authority of his commanding officer and that it was therefore prejudicial to good order and discipline.⁴ These factors distinguish this case from Fosler and place it in line with Watkins.

When we examine the specific offenses involved, moreover, we draw even further distinction from the adultery charge in Foster and the offense at issue in this case. As the CAAF noted in Fosler, the mere allegation of “adulterous conduct” is most likely not a crime without the attendant impact on good order and discipline or the reputation of the service. Fosler, 70 M.J. at 230. Breaking restriction, on the other hand, involves a uniquely military offense based on obedience to orders,⁵ a foundation of the armed services. See Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (noting “fundamental necessity of obedience” and correlative necessity for imposition of discipline). Here the specification expressly states that the restriction was imposed by a person authorized to do so, indicating it was a valid order. The specification alleges that the restriction was broken; therefore, by implication the order was violated. Nothing could be more inimical to good order and discipline than failing to do that which one has been ordered to do, or by doing that which one has been ordered not to do. We are mindful as well that “the military is, by necessity, a specialized society separate from civilian society.... [T]he military has, again by necessity, developed laws and traditions of its own during its long history.” Parker v. Levy, 417 U.S. at 743, 94 S.Ct. 2547. It follows then, that declaring a specification alleging a breach of restriction does not state an offense unless the obvious — the effect on reputation and/or good order and discipline— is explicitly recited in the specification would not only repudiate decades of military jurisprudence, but it would undermine centuries of military training and culture.

In sum, there are several reasons why this case is distinguishable from Fosler and aligns itself with Watkins. First, the appellant did not object to the sufficiency of the specification at trial. Second, the appellant pled guilty to the specification. Third, the military judge explained to the appellant that the specification contained the terminal element during the providence inquiry. Fourth, during the providence inquiry, the appellant acknowledged that he understood the terminal element as explained to him by the military judge. Fifth, the appellant provided an apt explanation to the military judge of how his conduct satisfied the terminal element, that is, how it was prejudicial to good order and discipline. Last, the language of the specification implicitly contains an element of prejudice to good order and discipline.

For these reasons, and in consideration of the principles laid out by the CAAF in Fosler and the Court of Military Appeals in Watkins, we conclude that the specification stated an offense. The terminal element, that the conduct was prejudicial to good order and discipline was included by necessary implication in the specification. We are satisfied, then, that the appellant enjoyed what has been described as the “clearly established” right of due process to “ ‘notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge.’” Fosler, 70 M.J. at 229 (quoting Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948)).

Conclusion

The findings and sentence as approved by the convening authority are affirmed.

CARBERRY, S.J., BEAL, J., PAYTON-O’BRIEN, J., WARD, J., and MODZELEWSKI, J., concur. REISMEIER, C.J., filed a concurring opinion joined by MAKSYM, S.J. PERLAK, J., filed an opinion concurring in the result.

Senior Judge CARBERRY, Judge BEAL, Judge PAYTON-O’BRIEN, Judge WARD, and Judge MODZELEWSKI concur.

1 . Record at 26.

2 . Id. at 27-29.

3 . Foster again cites by comparison to Watkins when restating the narrower interpretation of specifications first challenged at trial. "Because Appellant made an R.C.M. 907 motion at trial, we review the language of the charge and specification more narrowly than we might at later stages. Watkins, 21 M.J. at 209-10." Fosler, 70 M.J. at 232.

4 . Record at 28-29.

5 . Significantly, the elements for breach of restriction emphasize the "order” underlying the offense. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 102b.