United States v. Silvas

11 M.J. 510, 1981 CMR LEXIS 774

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 31, 1981
• Docket: NCM 80 0823
• Status: Published

Opinions

EDWARDS, Judge:

Appellant was tried by special court-martial, military judge sitting alone, for alleged violations of Articles 80 and 121, Uniform Code of Military Justice (UCMJ) 10 U.S.C. §§ 880, 921; pursuant to his pleas he was found guilty of four violations of Article 80, UCMJ. He was sentenced to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $360.00 per month for 4 months, and reduction to pay grade E-l. The convening authority reduced the forfeitures to $299.00 per month for 4 months and otherwise approved the sentence. The supervisory authority approved the remaining sentence after suspending execution of the bad-conduct discharge and confinement at hard labor in excess of 3 months.

Appellant has assigned as error:

I

SPECIFICATIONS 1, 3, 4, AND 6 OF CHARGE I FAIL TO ALLEGE ANY VIOLATIONS OF THE UNIFORM CODE OF MILITARY JUSTICE.

II

THE COURT-MARTIAL ORDER ERRONEOUSLY RECITES THE FINDINGS.

III

APPELLANT’S GUILTY PLEAS WERE ENTERED PURSUANT TO AN UNWRITTEN PRETRIAL AGREEMENT AND WERE THEREFORE IMPROVIDENT AS A MATTER OF LAW.

In addressing these issues we found it necessary to request of counsel briefs concerning additional points the Court perceived as bearing on the resolution of the case. Counsel’s briefs ably assisted the Court in its deliberation. We do not agree with assigned error I as asserted, but will set aside the findings for other reasons. Our decision in this case will moot the issue as to assigned error II. Assigned error III is without any basis in fact and is therefore without merit.

Assigned error I underscores the care with which charges must be drafted, particularly when the offense alleged is an attempt to violate Article 92, UCMJ, 10 U.S.C. § 892, by failing to obey a lawful general regulation; the preciseness of language military judges must utilize in explaining the elements of the offense; and the exactitude required of the accused’s admission of guilt made during the hearing into the providency of the guilty plea. United States v. Care, 18 U.S.M.C.A. 535, 40 C.M.R. 247 (1969).

We first address the issue of whether the questioned specifications in this case allege a violation of the UCMJ. It will suffice to set out one of the questioned specifications, for each are identical in form, varying only as to the factual basis of the pleading:

Charge I: Violation of the Uniform Code of Military Justice, Article 80.

Specification 1: In that Lance Corporal Steve SILVAS, U. S. Marine Corps, Headquarters and Service Company, Infantyr [sic] Training School, Marine Corps Base, Camp Pendleton, California, a person subject to the jurisdiction of the U. S. Marine Corps under Article 2, Uniform Code of Military Justice by virtue of a valid enlistment contract signed by him on 31 May 1977 for a period of four years, did, at Marine Corps Base Camp Pendleton, California, on or about 17 May 1979, violate a lawful general regulation, to wit: Article 1151, U. S. Navy Regulations, dated 26 February 1973, by attempting to possess 0.399 grams, more or less, of methamphetamine, an offense cognizable by military court-martial in that it occurred on board Marine Corps Base, Camp Pendleton, California, a situs over which the U. S. Marine Corps exercises exclusive jurisdiction.

In testing the sufficiency of specifications it is established military law that the rigors of old common law pleading have been replaced by the general principle of modern practice that formal defects which are not prejudicial will be disregarded. We must look to see if the specification contains the elements of the offense intended to be charged; whether the defendant is sufficiently apprised of what he must be prepared to meet; and whether the record shows with accuracy to what extent he may plead a former acquittal or conviction in bar of an attempted subsequent prosecution. If, as in the case, sub judice, when the pleadings have not been attacked prior to findings and sentence, then, if the necessary facts appear in any form or by fair construction can be found within the terms of the specification, the specification will be found to be sufficient. United States v. Sell, 3 U.S. C.M.A. 202, 11 C.M.R. 202 (1953). The analysis of the case sub judice is complicated by the fact that the offenses are charged under Article 80, UCMJ, as attempts. We must therefore look to the plain language of the specification to ascertain its sufficiency.

From the specification set out above as an example we learn that appellant is charged with an attempt under Article 80, UCMJ, that he on or about 17 May 1979 at Marine Corps Base, Camp Pendleton, California violated a lawful general regulation, to wit: Article 1151, U. S. Navy Regulations, 1973 by attempting to possess 0.399 grams, more or less, of methamphetamine. The offense is drawn under Article 80, UCMJ. In order to convict an accused of a violation of this article it must be shown that the accused did a certain act, that the act was done with the specific intent to commit a certain offense under the Code, and that the act amounted to more than mere preparation and apparently tended to effect the commission of the intended offense. It follows that the specification alleging such an offense must explicitly or implicitly by fair construction contain the elements of the offense, must sufficiently apprise the accused of the charges he faces and must contain enough information to protect against a subsequent prosecution for the same offense.

Appellant was advised in the sample specification that he was charged with committing a certain act, that is, attempting to possess 0.399 grams, more or less, of methamphetamine aboard Camp Pendleton on or about 17 May 1979. He was also advised that his act was done with the intent to commit a certain offense under the Code, that is, violate Article 92, UCMJ, by violating a lawful general order Article 1151, U. S. Navy Regulations, 1973, and, by fair construction, that the act of attempting to possess the 0.399 grams, more or less, of methamphetamine was more than mere preparation and tended to effect the commission of the intended offense.¹ Considering the specification in its entirety it is a fair construction to say that it alleges appellant attempted to violate Article 92 in attempting to violate Article 1151, U. S. Navy Regulations, 1973 by his attempt to possess 0.399 grams, more or less, of methamphetamine. The specifications were not attacked at trial and the military judge set out the elements in such a manner as to clearly show that the offense attempted would have violated Article 92, through the attempt to violate Article 1151, U. S. Navy Regulations, 1973. The specific act done in furtherance of the attempt was the possession of a controlled substance which appellant believed to be methamphetamine but which was in fact another controlled substance; this undoubtedly was the reason the offense was charged as an attempt instead of as a violation of a lawful general order. We find assigned error I to be without merit. United States v. Sell, supra.

This case does highlight the need for exactitude in language when drafting charges alleging violations of Article 80. We can not end our inquiry at this point, however, because we must determine whether the military judge properly explained the elements of the offense as structured in the pleadings and elicited from appellant a factual basis upon which a provident plea could be established. United States v. Care, supra. Our inquiry reveals that the need for exactitude in language in charge drafting goes hand-in-hand with the need for precision in Care inquiries made by the military judge so to lessen the chance that error occur.

The Article 80, UCMJ, offense charged was the attempt to violate Article 92, UCMJ; this added another element to discuss vis-a-vis an Article 92, UCMJ, violation. It thereby became necessary that the accused have the specific intent to violate the lawful general regulation; this required that the military judge explain intent to appellant and that appellant explain he in fact had knowledge of the lawful general order and he in fact had a duty to obey that order. In the absence of such an understanding by appellant, the requisite specific intent could not exist. The military judge did explain the element of intent to appellant; however his inquiry into the factual basis was deficient as to specifications 1, 3, 4 and 6 of Charge I. The military judge explained to appellant that in each specification “the second element would be that the act was done with the specific intent to commit the offense of Violation of Article 92, that is, to wit, a Violation [sic] of United States Naval [sic] Regulations, Article 1151, dated 26 February 1973. The offense being the ....”. (R. 9). Nevertheless, he then, failed to obtain any factual information from appellant that appellant specifically intended to violate the named U. S. Navy Regulation, that he at the time of the offense knew that such a regulation was in existence, or that he knew that such a regulation applied to him.

The findings of guilty to Charge I and the specifications thereunder are set aside. A rehearing may be ordered.

Judge PRICE concurs.

1 . In examining the above specification, we note that when compared with the form specification suggested in Appendix 6, Manual for Courts-Martial, 1969 (Rev.), the word “attempt” is missing immediately preceding the phrase “violate a lawful regulation”. Despite this, the specification clearly was not being drawn under Article 92, UCMJ, but instead was drafted to notify of a violation of Article 80, UCMJ.