United States v. Pedrazoli

45 M.J. 567, 1997 CCA LEXIS 44, 1997 WL 37185

• Court: United States Air Force Court of Criminal Appeals
• Decided: January 15, 1997
• Docket: ACM S29230
• Status: Published

Opinions

OPINION OF THE COURT

MORGAN, C.H., II, Judge:

In August of 1995, appellant and two fellow airmen who were also assigned to DavisMonthan Air Force Base in Arizona, purchased cocaine in Nogales, Mexico, bringing it back across the border to the United States. Once across the border they took several lines of cocaine in the parking lot in appellant’s car, and continued to consume the cocaine on the trip back to base. In the ensuing month, appellant took cocaine on at least two other occasions, once in the dormitory on base. He was brought to trial by special court-martial on May 10, 1996, and was convicted pursuant to his pleas of divers use of cocaine between on or about August 1, 1995, to on or about September 29, 1995. A military judge sentenced him to a bad-conduct discharge, confinement for four months, forfeitures of two-thirds pay per month for four months, and reduction to the lowest enlisted grade. Appellant’s pretrial agreement did not factor on the adjudged sentence, as he had bargained for referral to a special-court martial, with its attendant jurisdictional limits on punishment.

On April 1, 1996, legislative amendments to the Uniform Code of Military Justice (UCMJ), enacted by Congress as part of the FY 1996 Department of Defense Authorization Act, P.L. 104-106, enacted February 10, 1996, became effective. Appellant contends he was adversely affected by these amendments and that, as applied to him, they operate as an ex post facto law prohibited by U.S. Constitution, art. I, § 9, cl. 3. He urges upon us some unspecified sentencing relief, although he concedes that his sentence was within the jurisdictional limits of a special-court martial, limits which did not change from the time he committed his crime through the time of his conviction and sentencing. We hold that the February 10, 1996, amendments to the UCMJ which amended Article 57 and added Article 58b are not prohibited by the Ex Post Facto Clause of the Constitution.

UCMJ Amendments

Two sections of Title XI of P.L. 104-106 are at issue. The first, section 1121(a)(1), amended Article 57 of the UCMJ, 10 U.S.C. § 857, to change the effective date for forfeitures and grade reduction to the earlier of 14 days after sentence is adjudged or the convening authority’s action. Under the previous version of Article 57, forfeitures did not commence until after the convening authority took action on the sentence. Reductions in grade were not covered.

Congress also added a new section to the UCMJ. Section 1122(a)(1) of P.L. 104-106, codified as Article 58b, 10 U.S.C. § 858b, in pertinent part declares that one sentenced to confinement for more than six months, or to any period of confinement and a punitive discharge, shall forfeit two-thirds pay and allowances¹ in the ease of a special court-martial, and total forfeitures in the case of a general court-martial during the period of confinement. Both of these amendments were to become effective for any case “in which a sentence is adjudged by a court-martial on or after the first day of the first month that begins at least 30 days after the date of enactment of this Act.” Act of Feb. 10, 1996, P.L. 104-106, Div A, Title XI, Subtitle B, § 1122(b), 110 Stat. 186, 463. This works out to apply to any case tried on or after April 1,1996.

Standing

It is axiomatic to constitutional practice that one challenging the constitutionality of a statute must have standing to do so, that is, he must have suffered some direct or palpable injury from the act. Fleming v. Rhodes, 331 U.S. 100, 67 S.Ct. 1140, 91 L.Ed. 1368 (1947). One who is not prejudiced by the enforcement of an act cannot question its constitutionality. Monamotor Oil Co. v. Johnson, 292 U.S. 86, 96, 54 S.Ct. 575, 579, 78 L.Ed. 1141 (1934). Appellant’s standing with respect to his attack on Article 57 is straightforward. Finance records supplied pursuant to this court’s order reveal that he was, as the law requires, reduced to pay grade E-l and that forfeitures commenced (albeit by fits and starts) on May 25, 1996, fourteen days after the announcement of his sentence. Since the convening authority did not take action until June 25, 1996, appellant was affected by the earlier reduction and commencement of forfeitures occasioned by the operation of the amended Article 57.

Appellant’s standing with respect to Article 58b is less clear. The government argues that, because appellant has suffered no direct impact from the application of Article 58b, he cannot complain of it. This, the government continues, is because Article 58b was not triggered at all. The military judge, in addition to sentencing appellant to a punitive discharge and jail time, sentenced him to forfeit two-thirds of his pay per month for four months. These forfeitures are the same as would have automatically occurred by operation of Article 58b had the judge announced no forfeitures or some amount less than he did.

Standing, when one speaks of the application of ex post facto analysis to a sentence, is a tricky thing. The Supreme Court has “squarely held” that “an individual prisoner need not prove that the retroactive application of a law authorizing an increased punishment for a past offense has actually affected the sentence that that prisoner must serve.” California Department of Corrections v. Morales, — U.S.-,-, 115 S.Ct. 1597, 1607, 131 L.Ed.2d 588 (1995) (Stevens, J., dissenting), citing Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). In Lindsey’s case, the Court ruled invalid, as ex post facto, a Washington law changing what had been the maximum sentence for Lindsey’s crime, 15 years, into the minimum sentence. Lindsey was sentenced to serve 15 years in prison. Notwithstanding that the sentence Lindsey served was permissible under the old regime, the Court decided that raising the floor of the permissible range of punishments ex post facto was little different from raising the ceiling. Practically speaking, it would have been impossible for Lindsey to have established that he received 15 years jail time as a result of the new law, since it was a permissible punishment under the old.

In our case, however, the military judge betrayed an apparent belief that the law constrained him to adjudge maximum forfeitures, whether or not he personally believed that to be an appropriate component of the sentence. In explaining to appellant the consequences of his guilty plea, the military judge advised:

MJ: Also, I need to make certain Airman Pedrazoli is aware of a recent change in the law, that if there is a punitive discharge in conjunction with confinement, that forfeiture is [sic] up to the jurisdictional limits during such time of confinement, have [sic] now been mandated by law.

Do you understand this change in the law? (Defense counsel and the accused confer.)

ACC: Yes sir.

MJ: I might note for counsel, because of the change in the law and the mandatory forfeiture, if there is adjudged in this case a punitive discharge in conjunction with confinement, it would be likely I would be announcing forfeitures to the jurisdictional limits that are mandated, so it would probably be announced at — two thirds pay per month____ I mention that now in case counsel wish to make any comment at a later time on that point.

The military judge’s laudable candor apparently rested on his belief that the new law constrained his sentencing discretion. But if the treatment of the parallel provision in the UCMJ, Article 58a (providing for automatic reduction to E-l in certain cases) is any guide, the military judge was mistaken. He was free to adjudge forfeitures in any amount, or not at all, as he saw fit within the jurisdictional limitations of the forum. See R.C.M. 1003(b)(5) (Discussion); United States v. Powell, 30 C.M.R. 288, 1961 WL 4439 (C.M.A.1961) (holding that the automatic reduction provision of Article 58a was not a judicially imposed punishment, but “an administrative consequence of the enumerated sentence.”).

Of course, we cannot be sure whether, in the absence of Article 58b, the military judge would have imposed maximum forfeitures anyway, but his remarks on the record suggest to the contrary. Certainly, the issue of standing would have been cleaner if the military judge had imposed some lesser forfeiture and Article 58b had operated independently to increase the forfeitures beyond those adjudged. Still, this factual ambiguity seems to be just the kind of situation facing the Supreme Court in Lindsey, and we resolve it the same way, deciding that appellant does have standing to contest Article 58b.

Applicable Precedent

The Supreme Court’s most recent pronouncement on the Ex Post Facto Clause as it applies to the sentence of convicted prisoners confirms the Court’s announced return to the fundamental principles of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-391, 1 L.Ed. 648 (1798) and Beazell v. Ohio, 269 U.S. 167,169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925), namely, that the Clause is aimed at laws which “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Morales, — U.S. at -, 115 (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719-20, 111 L.Ed.2d 30 (1990)). Collins signalled the Court’s belief that ex post facto analysis had strayed too far from its constitutional moorings, particularly with respect to defining which laws were, and which were not, properly the subject of ex post facto analysis.²

The Morales Court went on to discredit, although it did not specifically overrule, Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); and Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) insofar as they seemed to expand coverage of the ex post facto proscription to any law which retroactively “disadvantaged” a criminal defendant. Nevertheless, appellant’s reliance on this trilogy of cases warrants a brief factual recitation of each.

Lindsey was convicted of grand larceny at a time when the maximum sentence was no more than 15 years. By the time he came up for sentencing, however, the minimum sentence was 15 years, which is what Lindsey got. There was no maximum. What had been the ceiling was now the floor.

Weaver was convicted pursuant to his plea of second-degree murder and sentenced to a prison term of 15 years. After he had already begun serving his time the statute which controlled the computation of “gain time” was amended, effectively lengthening the time he would spend in prison from that period which would have been calculated us-the earlier formula. Effectively, the “ceiling” on Weaver’s prison term was raised. ing

Finally, Miller found himself subjected to new sentencing guidelines. At the time he committed his crime the presumptive sentencing range was from 3)6 to 4)6 years, but at the time of his sentencing, the range had been boosted to 5)6 to 7 years. Miller was sentenced to 7 years. The Supreme Court, acknowledging that a 7 year sentence was a possibility under the old regime, nevertheless decided that, de facto, if not de jure, the ceiling had been raised.

Finding a Supreme Court precedent on all fours with the case before us is improbable. One unfamiliar with the idiosyncrasies of our military jurisprudence might be surprised to learn that military prisoners awaiting execution of a punitive discharge are paid at all, much less that they might receive full pay and allowances. The payment of other than a nominal wage to a prisoner is alien to common penology, and so forms no part of the bibliography of ex post facto precedent before us. Hence, there is no Supreme Court precedent treating with the Ex Post Facto Clause as it relates to forfeiture of pay. Since cases dealing with the Ex Post Facto Clause as it relates to sentencing invariably deal in some manner or another with confinement and its duration, we have no Supreme Court guidance on the difference, if there be any, between the liberty interests which are at stake in typical ex post facto litigation, and the interests inhering in forfeitures.³

This is not to say that ex post facto analysis is new to our judicial regime. The Court of Appeals for the Armed Forces, then the Court of Military Appeals, grappled with the issue in United States v. McDonagh, 14 M.J. 415 (C.M.A.1983), but in a context somewhat out of the mainstream of ex post facto jurisprudence — court-martial jurisdiction. The Court finessed the question of its authority (although there was no indication it was raised) by construing the statute in such a way as to obviate any ex post facto concerns, holding that the elimination of recruiter misconduct as a jurisdictional defense was procedural in nature. See also United States v. Felix, 25 M.J. 509 (A.F.C.M.R.1987) (change in DoD standards for drug urinalysis testing not violative of ex post facto prohibition), pet. denied 26 M.J. 65 (C.M.A.1988). The approach taken by the McDonagh and Felix opinions has application to our analysis here, as we shall see later.

Appellant’s Article 57 Claim

With the above precedent as backdrop, disposition of appellant’s Article 57 claim is straightforward.⁴ The Article 57 amendment does not violate the ex post facto prohibition, as it does no more than (potentially) accelerate the time when reductions in grade and forfeitures can commence. Duration is not increased. Appellant fashions an ingenious argument to the effect that his punishment has been enhanced, noting that oftentimes offenders never fully suffer adjudged forfeitures because they complete their sentence to confinement and go on appellate leave without pay before full forfeitures have been extracted. In effect, appellant argues this administrative serendipity is a substantial, constitutionally protected right at the time he snorted coke. We may with some justification infer that this very situation to which appellant claims entitlement might have been what stimulated Congress to act as it did. The important consideration, for purposes of ex post facto analysis, is that appellant’s sentence was not enlarged one whit through the operation of an amended Article 57. If the forfeitures began sooner, likewise they ended sooner,⁵ and in any case no later than four months after they began.

The analysis is no different with respect to the reduction in grade. The effective date of the reduction is, at most, a procedural incident of the sentence. It does not create any risk of increasing the measure of punishment attaching to appellant’s crime. Morales, — U.S. at-, 115 S.Ct. at 1603.

Article 58b

When appellant took cocaine in August and September of 1995, under the UCMJ he was on notice that he faced a possible maximum punishment of a dishonorable discharge, confinement for 5 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. Manual for Courts-Martial, United States, Part IV, ¶ 37(e)(1)(a) (1995 ed.). Conversely, the minimum punishment for that conviction was no punishment. Article 58b did not change the maximum or minimum sentence, nor did it establish a new presumptive sentencing range at the time of trial, nor did it tinker with the calculation of “good time,” the earliest release date, or parole eligibility. Both the floor and the ceiling remained where they were. Under Youngblood and Morales, there the inquiry might end.

However, appellant likens his ease to those of Weaver, Miller, and Lindsey. He argues that the automatic loss of pay changed the “measure of punishment” analogously to recalculation of “gain time” or raising the de facto sentencing range. Noting that, at best, those cases enjoy limited vitality post-Morales, we find they do not control here.

In the first place, there is a qualitative, judicially cognizable difference between the potential loss of pay while a prisoner versus the ex post facto impairment of a fundamental liberty interest. Military pay and allowances are the creature of statute, stemming from Congress’ constitutional authority to raise and maintain the armed forces. Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961). Congress could, without notice, reduce the pay of all members of the Armed Forces, or, as has occurred in our history, simply fail to appropriate money for pay. There is no constitutional, vested, nor even contractual right to be paid in derogation of statutory authority. With that in mind, it cannot be that one’s right to pay should be enhanced by reason of status as an adjudicated prisoner facing a punitive discharge.

The ease of United States v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977), is instructive in this latter respect. Larionoff had reenlisted in the Navy for six years in anticipation of a reenlistment bonus in what was, for a time, a critical military skill. He duly enrolled in, and graduated from, specialized training in that critical military skill. However, by the time Larionoff came to collect his bonus, his specialty had been downgraded, along with the size of his bonus. In analyzing Larionoffs claim, the Supreme Court reaffirmed Bell, writing, “No one disputes that Congress may prospectively reduce the pay of members of the Armed Forces, even if that reduction deprived members of benefits they had expected to be able to earn.” Larionoff, 431 U.S. at 879, 97 S.Ct. at 2159 (emphasis added). Nor does the adverb “prospectively” further appellant’s argument. On the contrary, Article 58b did not take away, directly or otherwise, any pay appellant had already earned or accrued previous to his conviction.

While Lindsey and Miller may be distinguished because in both cases the sentencing range actually changed, strictly speaking that distinction does not hold for Weaver. What distinguishes Weaver is that he entered his guilty plea under a readily calculable assumption as to how much time he would actually spend in prison. The change in “gain time” dashed these calculations and ineluctably increased his actual jail time. The Supreme Court attached great importance, as do we, to the fact that the change in law occurred after Weaver’s guilty plea, observing “that a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed.” Weaver, 450 U.S. at 32,101 S.Ct. at 966.

Because appellant entered his plea of guilty fully apprised of the ramifications of Article 58b, having been briefed thereon by the military judge, he cannot squeeze himself into the logic of Weaver's holding. This is more than a technical distinction, but goes directly to the foundational purposes of the Ex Post Facto Clause served by the Weaver reasoning. In plain language, the Clause was incorporated into our Constitution so that one contemplating a given act should first know of its criminality, and second, of its penal ramifications. Both the criminality of cocaine use, and the maximum punishment therefor, remained constant from appellant’s usage through his conviction and sentence. Looking to the purposes underlying the ex post facto prohibition, we will not credit the fatuous notion that appellant was lulled into snorting cocaine by reason of his understanding that he could be punitively discharged and confined yet not suffer the loss of his pay. Felix, 25 M.J. at 511.

Third, our superior Court has considered the parallel provisions of Article 58a in such a fashion as to resolve, a fortiori, any question as to whether Article 58b represented an enhancement of punishment such as to fall under coverage of the ex post facto prohibition. In United States v. Powell, 30 C.M.R. 288, 289, 1961 WL 4439 (C.M.A. 1961)⁶, the Court rejected the contention that the automatic reduction provision of Article 58a served to increase the adjudicated sentence of the court-martial. It concluded instead that the reduction was “an administrative consequence of the enumerated sentence ... merely declaratory of the services’ undoubted authority administratively to reduce any accused whose punishment comes within its terms.” Compare Cleckley, 23 C.M.R. at 308-09. The Powell holding, though the subject of emphatic dissent, has been incorporated into our present Manual for Courts-Martial, which comments: “Reduction under Article 58a is not a part of the sentence but is an administrative result thereof.” R.C.M. 1003(b)(5) (Discussion). Since we discern that none of the purposes of the Ex Post Facto Clause of the Constitution would be served by enlarging its coverage to appellant’s ease, we reject his appeal on that basis.⁷ We conclude, therefore, that the enactment of what is now Article 58b did not offend the Constitution’s prohibition against ex post facto laws.

Remaining Assignments of Error

Appellant’s remaining assignments of error may be disposed of summarily. A new convening authority’s action is not necessary inasmuch as it is clear that the convening authority had, and considered, the appellant’s grandmother’s clemency submission. Even though the letter was not listed as an attachment to the addendum to the staff judge advocate’s recommendation, it was mentioned in the body of the addendum, and was included in the proper place in the record of trial. Furthermore, the convening authority, in a post-trial affidavit, declares that although he cannot remember for certain if he saw that letter, after specifically considering it, he is unmoved to change his mind. We are persuaded that he did see the letter in the first instance, but in any event, his subsequent consideration of the letter dispels any possibility of prejudice.

Appellant’s final assignment of error is likewise without merit. The adjudged sentence by the military judge is clear, and clearly stated. The articulation of that sentence in the court-martial order, while convoluted, at least resulted in an approved sentence which was in all respects congruent with that adjudged.

Conclusion

Having examined the record, assignments of error, and submissions of the parties, we hold the findings and sentence to be correct in law and fact, the sentence is appropriate, and the same are hereby

AFFIRMED.

Judge J.H. MORGAN concurs.

1 . By including the words "and allowances” in reference to the forfeitures obtaining in a special court-martial, as originally enacted, Article 58b left open the possibility of a sentence which exceeded the jurisdictional limits of a special court-martial. See Article 19, UCMJ, 10 U.S.C. § 819. A technical correction was enacted in the FY 97 Authorization Act which struck these words. Appellant, who was single and living in the dorm at the time of trial, concedes that the allowance issue forms no part of his case inasmuch as he had no allowances affected by the provision.

2 . The Court overruled Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898). In the Court’s view, these cases represented an unwarranted departure from proper ex post facto analysis in that they had expanded the definition of an ex post facto law to be one which “in relation to the offense or its consequences, alters the situation of a party to his disadvantage." Youngblood, 497 U.S. at 47, 110 S.Ct. at 2721 (quoting Kring, 107 U.S. at 228-29, 2 S.Ct. at 449-50). "Neither of these decisions, in our view, is consistent with the understanding of the term 'ex post facto law' at the time the Constitution was adopted." Youngblood, 497 U.S. at 47, 110 S.Ct. at 2722.

3 . Loss of pay has been the rule, rather than the exception, for convicted military offenders awaiting execution of a punitive discharge. Before 1914, a dishonorable discharge was executed at the conclusion of the court-martial, so that an enlisted prisoner entered into confinement already separated from the service, and hence entitled to no pay. See United States v. Cleckley, 23 C.M.R. 307, 310, 1957 WL 4485 (Quinn, J., dissenting). The Act of March 4, 1915, 38 Stat. 1065, provided that "pay and allowances shall not accrue to a soldier under sentence of dishonorable discharge," during any period of suspension. It was replaced by a similar provision which provided for the cessation of entitlement to pay and allowances for any member of the Army who was confined and had been sentenced to a dishonorable discharge, pending execution of the discharge. Act of August 10, 1956, 70A Stat. 208, 10 U.S.C. § 3636.

4 . We undertake this analysis recognizing there may be an issue as to the authority of an Article I court to declare an act of Congress unconstitutional. The seminal case of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), hinged justification for judicial review on the constitutional basis of separation of powers. Our lone foray into Article III territory unarmed with clear precedent from the Supreme Court, United States v. Fagg, 33 M.J. 618 (A.F.C.M.R.1991) (holding Article 125 as it applied to private, heterosexual, consensual sodomy unconstitutional), was summarily rebuffed. Writing for a unanimous Court of Military Appeals, now Chief Judge Cox wrote, “we detect no indication from the Supreme Court which permits us to override the intent of Congress." United States v. Fagg, 34 M.J. 179, 180 (C.M.A.1992). Our research discloses no Supreme Court case deciding whether an Article I court can declare, ab initio, a legislative enactment of Congress unconstitutional. That there are limitations to the judicial power of Article I tribunals cannot be gainsaid. See, e.g., Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). See also Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Professor Fallon argues that any uncertainties in this respect might well be cured by making the Court of Appeals for the Armed Forces an Article III court. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv.L.Rev. 916 (1988). Without intimating a result either way, our resolution of this issue adversely to appellant leaves the question for another day.

5 . Both parties furnished us with copies of appellant's pay records. We do not pretend to fathom the glyphic array of entries, as we were not furnished with an equivalent to the Rosetta Stone. But it is clear that forfeitures commenced, true to the law, 14 days after the announcement of sentence. Appellant does not claim that any money in excess of the adjudged forfeitures was taken.

6 . Examination of the relevant dates strongly suggests that Article 58a, which was enacted July 12, 1960, was in all probability effective well after Powell committed his larceny. The Court of Military Appeals opinion issued April 21, 1961, just nine months after enactment. Even in the halcyon days of yesteryear, we are hard put to believe that Powell committed a larceny, was tried, convicted, then prosecuted his appeal through the Air Force Board of Review and thence to the Court of Military Appeals who then issued an opinion — all within nine months. We attribute the absence of an ex post facto argument to a recognition of its want of merit, and not, as does our concurring brother, to the lassitude of Powell's counsel.

7 . Appellant entered into his plea advisedly, having already secured a sizable sentencing concession from the government, reducing his potential exposure from a dishonorable discharge, confinement for 5 years, total forfeitures, and reduction to airman basic, to the comparatively mild jurisdictional limits of a special court-martial. In light of this, appellant's argument appears to be a constitutional circumlocution which ends up with the conclusion that his guilty pleas were improvident. It could be argued, although the government does not do so, that in pleading guilty after being advised of the consequences of the new amendments to the UCMJ, he advisedly waived any ex post facto arguments he might have.