Petition for Writ of Certiorari — Carpenter v. United States

Supreme Court, U.S.

() FILED

96177 4 MAY 7 1997

No. QEEICE OF THE CLERK

In the

Supreme Court of the Anited States

October Term, 1996

JACK R. CARPENTER, Jr.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

HOWARD BARRY GOODMAN

Lieutenant Commander, Judge Advocate

General’s Corps, U.S. Navy

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Building 111

Washington, D.C. 20374-1111

(202) 433-4161

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does the dismissal of a retirement-eligible Navy officer

by a court-martial violate the Excessive Fines Clause of the

Eighth Amendment?

2. Does the dismissal of a retirement-eligible Navy officer

by a court-martial violate the Due Process Clause of the

Fifth Amendment?

PERROTT

TABLE OF CONTENTS

CPR BREA nc cece cece wes eenns l

ik ae) 6, Sa arn alee arr are arr a: ar aeerar eae 2

CONSTITUTIONAL PROVISIONS AND

eT ee EE vie eee eee 8

STATEMENT OF THE CASE .......--002000. 3

REASON FOR GRANTING THE PETITION

The Court of Appeals for the Armed

Forces and the Navy-Marine Corps Court

of Criminal Appeals erroneously decided

the questions presented..............-. +

Se PhS Cae eae EO ROE ROD 18

APPENDIX A

(Order of the U.S. Court of Appeals

for the Armed Forces --

United States v. Carpenter) .......+.++-. la

APPENDIX B

(Opinion of the U.S. Navy-Marine

Corps Court of Criminal Appeals --

United States v. Carpenter)... .......02008: 2a

(iii)

TABLE OF AUTHORITIES

Cases:

Alexander v. United States, 509 U.S. 544 (1993) .4, 8

Austin v. United States, 509 U.S. 602 (1993) ....4, 8

Bandoy v. Commandant of Fourth Naval Dist.,

495 F. Supp. 1092 (2.D. Pa. 1960)... 2. we 16

Board of Regents v. Roth, 408 U.S. 564 (1972) ... 10

Brock v. Roadway Exp., Inc.,

OEt Ties Fae RAO RT oe Fe EES ee REN 12-13

Browning-Ferris Industries v. Kelco Disposal, Inc.,

O0e Ss EPP CEPT ok ee ee ee RS 4-5, 8

Goldberg v. Kelly, 397 U.S. 254 (1970) ........ 16

Hooper v. United States,

Fee Fa Pe eT | Fe ee ee 7

Logan v. Zimmerman, 455 U.S. 422 (1982) . 10-11, 13

Mathews v. Eldridge,

BON Ti FAP CPP oa Np ee ems 10-11, 14, 16

McCarty v. McCarty, 453 U.S. 210 (1981) ....... 7

Middendorf v. Henry, 425 U.S. 25 (1976) ....... 10

United States v. Blake, 30 M.J. 184 (C.M.A. 1990) . 15

United States v. Deninno,

103 Food SS CP Oe. 1996) ow i ee ee se 5

United States v. 829 Calle de Madero, Chaparral,

N.54,, 100 F.3d 734 (10th Cir. 1996) ......... 5

United States v. Graf, 35 M.J. 450 (C.M.A. 1992) . 10

United States v. Griffin,

aa a ee es Le ec ee ees iy te

United States v. Henderson, |

EP Pads Ad Ce NOD bo ER eee 13, 13

United States v. Hooper,

9 U.S.C.M.A. 637, 26 C.M.R. 417 (1958) ...... 7

(iv)

United States v. Lee,

43 M.J. 518 (A.F.Ct.Crim.App. 1995) ..... 14, 15

United States v. Sumrall,

iS DES. Set eee 6 vee ns Mewes 6-8, 12-13, 15

Weiss v. United States, 510 U.S. 163 (1994) ..... 13

Constitutional Provisions:

5 Cee, DE So kk ES eee ee 2, 10-17

LB. Cook, SO. VEL. wee ees 2, 4-10

Statutes:

SULA. Ore i cian 3 eRe ree eee 7

ie RA Oe ok wed oak Cok oe es 6, 16

al? 2 38% 2 7) Peper erenre mariner Soman yE pedi ar re 6

5 Rs ee os ee I a eee eee 3

1G tin SO 6 a aa hae eae ee 3

Ain OO 6 ei aa eee oe ee ee ee 3

SU UGA. ae 6 ia No ee eee a 3

SG RSs Oe Ree ae eh ee a a ee ee 3

10 Sh SP i os oo hd ee ee ee eee 3

Oe Sik ee OTe i eo 6 ce ee es 9, 13

ek Tee Be) Oe snare re atic tr 13

$0 USC OS PART AASS Co Ss ce ce 9, 13

SU Elen See ba eck ne se ceeea eee ees 9 {3

55 Ticks ee SORE SOR coe bbw tees ee eee 4

RY Rs ee ORES CRN ES 4

oe Sia RE oa oS a ea eee ee 2

Se CAA et SORE 6 8 ho TR ee 7

(v)

Miscellaneous:

Manual for Courts-Martial, United States

(1995 ed.) Rule for Courts-Martial 1001 .... 12, 15 |

Manual for Courts-Martial, United States

(ieee OF RO Si kc ccs eke eiwee ees 15

SRCNAVINGE LPOG kon ccnp eee neeaurs 13

(vi)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JACK R. CARPENTER, Jr.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

Jack R. Carpenter, Jr., respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Armed Forces in this case.

OPINIONS BELOW

The order of the Court of Appeals for the Armed

Forces (App., infra, 1a) is unpublished. The opinion of the

Navy-Marine Corps Court of Criminal Appeals (App.,

infra, 2a-12a) is also unpublished.

(1)

JURISDICTION

The Court of Appeals for the Armed Forces entered

its judgment on February 26, 1997 (App., infra, la). The

jurisdiction of this Court is invoked under 28 U.S.C. §

1259(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fifth Amendment to the U.S. Constitution

provides, in relevant part:

No person shall be . . . deprived of life, liberty, or

property, without due process of law...

The Eighth Amendment to the U.S. Constitution

provides:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment

inflicted.

3

STATEMENT OF THE CASE

Petitioner, on the date of his court-martial, was a

retirement-eligible Navy Commander (0-5) with over 20

years of active service. The court-martial convicted him,

pursuant to his guilty pleas, of ten specifications alleging

violations of lawful general orders, 43 specifications

alleging the making of false official statements, 20

specifications of larceny of government funds, 46

specifications of making false claims, one specification of

conduct unbecoming an officer, two specifications of

aduitery, and seven specifications of theft of telephone

services, in violation of Articles 92, 107, 121, 132, 133

and 134 of the Uniform Code of Military Justice, 10

U.S.C. §§ 892, 907, 921, 932, 933 and 934. He was

sentenced to 30 months confinement, total forfeiture of pay

and allowances, loss of all lineal numbers, and dismissal

from the Navy. The convening authority approved the

sentence and, except for the dismissal, ordered it executed,

but suspended all confinement over 18 months and all

forfeitures for the period of confinement plus 12 months.

The Navy-Marine Corps Court of Criminal Appeals set

aside and dismissed the finding of guilty to the charge and

specification alleging conduct unbecoming an officer,

affirmed the remaining findings of guilty, reassessed the

sentence, and affirmed it. The Court of Appeals for the

Armed Forces granted review of the two issues presented

in this petition and summarily affirmed the decision of the

Navy-Marine Corps Court of Criminal Appeals.

H

'

,

4

REASON FOR GRANTING THE PETITION |

The Court of Appeals for the Armed

Forces and the Navy-Marine Corps Court

of Criminal Appeals erroneously decided

the questions presented.

A. The Excessive Fines Question

The Eighth Amendment to the U.S Constitution

provides: "Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment

inflicted." At the time the Eighth Amendment was drafted

and ratified, the word "fine" was understood to mean a

payment to a sovereign as punishment for some offense.

Alexander v. United States, 509 U.S. 544, 558 (1993),

citing Browning-Ferris Industries v. Kelco Disposal, Inc.,

492 U.S. 257, 265 (1989). Hence, "[t]he Excessive Fines

Clause limits the Government’s power to extract payments,

whether in cash or in kind, ’as punishment for some

offense." Austin v. United States, 509 U.S. 602, 609-10

(1993), quoting Browning-Ferris Industries, 492 U.S. at

265 (emphasis in Austin).

Alexander, Austin, and Browning-Ferris Industries

are the only three cases decided by this Court which define

the scope of the Eighth Amendment’s Excessive Fines

Clause. Alexander held that an in personam forfeiture of

real estate and business property under the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. §§

1961-1968, was the equivalent of a fine for purposes of the

Excessive Fines Clause. 509 U.S. at 558-59. Austin held

that an in rem civil forfeiture under 21 U.S.C. §§ 881(a)(4)

and (a)(7) was a monetary punishment subject to the

limitations of the Excessive Fines Clause. 509 U.S. at 604.

Browning-Ferris Industries held that the Excessive Fines

p

5

Clause did not apply to punitive damage awards in cases

between private parties. 492 U.S. at 260.

This Court has left it to the lower federal courts to

determine whether a particular forfeiture is excessive. The

Federal Circuit Courts of Appeal have not settled upon any

clear rule to determine which forfeitures violate the Eighth

Amendment. United States v. Deninno, 103 F.3d 82, 87

(10th Cir. 1996). The majority of the circuits which have

addressed the question perform an analysis that purports to

balance the severity of the fine (forfeiture) with the

seriousness of the underlying offense and the culpability of

the owner. United States v. 829 Calle de Madero,

Chaparral, N.M., 100 F.3d 734, 737-38 (10th Cir. 1996).

Although there are differences between the tests articulated

by the circuits which have adopted this approach, the tests

roughly follow the same analytical process. Jd. First, the

instrumentality or nexus test examines the connection

between the forfeited property and the offense. Jd. The

burden is on the Government to prove that the connection

exists. Jd. Second, the proportionality test compares the

severity of the offense, the harshness of the sanction, and

the culpability of the claimant. Jd. The burden of

showing excessiveness is on the claimant. Jd.

The Navy-Marine Corps Court of Criminal Appeals

held that petitioner’s expected loss of retirement pay and

benefits did not violate the Excessive Fines Clause of the

Eighth Amendment. (App., infra, 7a-8a). The court

concluded that the potential loss of retirement pay and

benefits resulting from the dismissal of a retirement-

eligible officer was not a "fine" within the meaning of the

Excessive Fines Clause. Jd. The court viewed the loss of

retirement pay and benefits as merely a potential

consequence of the court-martial conviction and sentence

and not part of the sentence itself. Jd. at 8a (emphasis in

original).

6

The Court of Appeals for the Armed Forces

summarily affirmed in light of its decision in United States

v. Sumrall, 45 M.J. 207 (1996), cert. denied, 117 S.Ct. 961

(1997). Sumrall found that a retirement-eligible Air Force

Captain’s expected forfeiture of $600,000.00 in retirement

pay resulting from his court-martial sentence of dismissal

was neither excessive nor disproportionate in violation of

the Eighth Amendment. /d. at 210. Captain Sumrall was

convicted of two specifications alleging multiple and varied

acts of sexual misconduct with a minor over a lengthy

period of time. /d.

The decisions of the Navy-Marine Corps Court of

Criminal Appeals and the Court of Appeals for the Armed

Forces in petitioner's case are erroneous. The Navy-

Marine Corps Court based its decision on the fact that the

loss of retirement pay and benefits was not part of the

court-martial’s sentence, but was merely a potential

consequence of the sentence because any adjudged

dismissal would have to be approved and ordered executed

by the Secretary of the Navy or a designate. (App., infra,

8a). The Court of Appeals for the Armed Forces in

Sumrall did not see this as a problem:

At the outset, we recognize that appellant was not

sentenced to a forfeiture of his retirement pay or

other retirement benefits. For that matter there is

no express authorization in the Uniform Code of

Military Justice or the Manual for Courts-Martial

for the denial of retirement benefits. However, the

Uniform Code of Military Justice does authorize

punitive discharges (dismissal for officers -- see

Arts. 66(b)(1) and 71(b)&(c)(1), UCMJ, 10 USC §

866(b)(1) and 871(b)&(c)(1), respectively) and

appellant received that punishment. Moreover, in

certain cases, a punitive discharge such as a

—eSV'OO

7

dismissal might automatically trigger a loss of

retirement benefits as a matter of statutory law not

found in the Uniform Code of Military Justice. See

McCarty v. McCarty, 453 U.S. 210, 222 n.14, 101

S.Ct. 2728, 2736 n.14 (1981); 5 USC § 8312 (loss

of retired pay due to court-martial conviction for

certain national security offenses); 38 USC §

5303(a) (loss of veterans benefits when dismissed

from service by general court-martial). Finally, it

has also been held that a dismissal effectively

terminates a retired servicemember’s entitlement to

retired pay. See Hooper v. United States, 326 F.2d

982, 988 (Ct. Cl. 1964)(Admiral Hooper was tried

in his retired status and was receiving retired pay --

see generally United States v. Hooper, 9 USCMA

637, 26 CMR 417 (1958)).

In this context we are not inclined to

overlook this issue simply because appellant’s

court-martial sentence did not expressly deny him

retired pay. We recognize that the decision to retire

an Air Force officer in appellant’s grade and time

in service rests by statute with his service secretary.

45 M.J. at 208-09.

While the Court of Appeals for the Armed Forces

in Sumrall correctly declined to adopt the Navy-Marine

Corps Court’s "potential consequence" argument, it

incorrectly decided the excessive fines issue. As the court

in Sumrall was primarily concerned with the due process

question, it gave little attention to the excessive fines issue:

A related constitutional issue also arising in this

case is whether the expected forfeiture of some

$600,000 in retirement pay is "an excessive fine"

8

within the meaning of the Eighth Amendment. See

Austin v. United States, 509 U.S. 602, 113 S.Ct.

2801 (1993). Appellant argued before the Court of

Criminal Appeals that a huge forfeiture of money

for only 2 specifications of indecent acts with one

girl was clearly "disproportionate." We note that

the amount of retirement pay purportedly forfeited

in this case is clearly speculative to the extent that

it depends on a prediction of appellant’s life

expectancy. In any event, the 2 specifications of |

which appellant was convicted involved numerous |

diverse sexual acts committed with a minor by a

military officer over a lengthy period of time. See

Alexander v. United States, 509 U.S. 544, 113 S.Ct.

2766, 2776 (1993). We find no excessive or

disproportionate forfeiture as prohibited by the

Eighth Amendment in these circumstances.

45 M.J. at 210.

The Navy-Marine Corps Court of Criminal Appeals

and the Court of Appeals for the Armed Forces should

have set aside petitioner’s dismissal as an excessive fine

under the Eighth Amendment. The expected forfeiture of

military retired pay and benefits is a "fine" which was

excessive under the circumstances of this case.

The expected forfeiture of military retirement pay

and benefits is a "fine" for purposes of the Eighth

Amendment Excessive Fines Clause. It is a "payment to

a sovereign as punishment for some offense." Alexander,

509 U.S. at 558, citing Browning-Ferris Industries, 492

U.S. at 265. Petitioner had completed 20 years of

commissioned service the month prior to his court-martial,

and was thus retirement-eligible when convicted and

sentenced. "An officer of the Navy . . . who applies for

OT

9

retirement after completing more than 20 years of active

service, of which at least 10 years was served as a

commissioned officer, may, in the discretion of the

President, be retired on the first day of any month

designated by the President." 10 U.S.C. § 6323(a)(1).

Such an officer is entitled to retired pay and other bencfits.

See 10 U.S.C. § 6323(e)(retired pay); 10 U.S.C.

§1074(b)(medical and dental care); 10 U.S.C. §§ 1447-

1455 (survivor benefit plan). Petitioner’s court-martial

sentence included dismissal from the naval service. If

petitioner’s dismissal is approved and ordered executed he

will lose the opportunity to retire and to receive retirement

pay and benefits. Petitioner’s military trial defense counsel

estimated the value to petitioner of this pay and benefits at

$900,000.00. Enclosure (5) of LCDR McDonald’s

Clemency Letter of 27 Sep 94.

Petitioner’s loss of $900,000.00 worth of retirement

pay and benefits is excessive for the offenses of which he

was convicted. Petitioner’s charges stem primarily from

one of his extramarital affairs. He used government

telecommunications equipment and services to make

$14,000.00 worth of personal telephone calls to facilitate

the affair. He also made numerous false statements to

procure official travel orders. He traveled on these orders

to meet his paramour, submitted false travel claims on

these orders, and received approximately $9,350.00 in

liquidation of these claims. There is no connection

between petitioner’s offenses and his forfeited retired pay

and benefits. Hence, the instrumentality or nexus test is

not met. The proportionality test compares the severity of

the offense, the harshness of the sanction, and the

culpability of the claimant. Petitioner, in essence,

committed a $23,350.00 larceny. He pleaded guilty

without the protection of a pretrial agreement, and accepted

full responsibility. (R. 20, 99, 196). He reaped no

10

monetary benefit from his offenses. He made full

restitution before trial. (App., infra, 1la). Moreover, the

loss of petitioner’s retirement pay and benefits would

impose undue hardship on petitioner’s former wife and two

children. Petitioner, in his marital separation agreement,

assigned to his former wife any and all entitlement to any

future retirement pay and benefits. /d. at 9a. Under these

circumstances the loss of $900,000.00 of retired pay and

benefits is excessive.

B. The Due Process Question

The Due Process Clause of the Fifth Amendment to

the U.S. Constitution provides: "No person shall . . . be

deprived of life, liberty, or property, without due process

of law[.]". This clause applies to service members at

courts-martial. United States v. Graf, 35 M.J. 450, 454

(C.M.A. 1992), cert. denied, 510 U.S. 1085 (1994), citing

Middendorf v. Henry, 425 U.S. 25, 43 (1976).

Procedural due process imposes constraints on

governmental decisions which deprive individuals of

"liberty" or "property" interests within the meaning of the

Due Process Clause of the Fifth or Fourteenth Amendment.

Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Property

interests are "created and their dimensions are defined by

existing rules or understandings that stem from an

independent source such as state law -- rules or

understandings that secure certain benefits and that support

claims of entitlement to those benefits." Board of Regents

v. Roth, 408 U.S. 564, 577 (1972). -The hallmark of a

property interest is an individual entitlement, grounded in

law, which cannot be removed except for cause. Logan v.

Zimmerman, 455 U.S. 422, 430 (1982). Once that

characteristic is found, the types of interests protected as

"property" are varied and, as often as not, intangible,

Ee ee

1]

relating to "the whole domain of social and economic fact."

Id.

Due process is not a technical concept with a fixed

content unrelated to time, place and circumstances.

Mathews v. Eldridge, 424 U.S. at 334. Due process is

flexible and calls for such procedural protections as the

particular situation demands. Jd. Accordingly, resolution

of the issue of whether procedures are constitutionally

sufficient requires a balancing of the affected government

and private interests. Jd. at 334-35. Three distinct factors

must be considered: (1) the private interest that will be

affected by the official action; (2) the risk of an erroneous

deprivation of such interest through the procedures used,

and the probable value, if any, of additional or substitute

procedural safeguards; and (3) the Government’s interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail. Jd.

Petitioner challenged his dismissal in the lower

appellate courts as a violation of the Due Process Clause

of the Fifth Amendment. Petitioner argued (1) that his

sentencing hearing was inadequate because the military

judge did not consider the monetary value of his expected

retirement pay and benefits and (2) that the military judge

failed to set forth his reasons for adjudging a dismissal.

The Navy-Marine Corps Court of Criminal Appeals

rejected both of petitioner’s arguments. The court held (1)

that court-martial presentencing procedures complied with

due process and (2) that sentencers need not state why a

dismissal was adjudged. (App., infra, 8a-l1a). The court

noted that petitioner never sought to introduce evidence at

trial of the value of his retired pay and benefits and that

the military judge had no sua sponte obligation to obtain

such information. /d. The court found petitioner’s

argument flawed because retirement pay and benefits do

12

not vest once the officer reaches retirement eligibility.

(App., infra, 9a-10a).

The Court of Appeals for the Armed Forces

summarily affirmed in light of its decision in Sumrall.

Sumrall held that a retirement-eligible Air Force officer

was not denied due process by a court-martial sentence

which included a dismissal and deprived him of expected

retired pay and benefits. 45 M.J. at 208. The court noted

that a substantial question existed regarding whether the

appellant had a property interest in his expected retired pay

and benefits. Jd. at 209. The court assumed that the

appellant had such an interest, but found that he had been

afforded due process:

Assuming he does have such an interest, the next

question in this case is whether he was afforded due

process at his court-martial with regard to their

taking or denial. See Brock v. Roadway Exp., Inc.,

481 U.S. 252, 262, 107 S.Ct. 1740, 1747, 95

L.Ed.2d 239 (1987). The potential loss of

retirement benefits was a proper matter for

consideration by factfinders at appellant’s court-

martial. See generally RCM 1001(c)(1)(B), Manual |

for Courts-Martial, United States, 1984 (defense

may present matters in mitigation "to lessen the

punishment to be adjudged by the court-martial").

This Court has particularly held that retirement-

eligible servicemembers are entitled to put into

evidence that a punitive discharge would deny them

retirement benefits. United States v. Griffin, 25 MJ

423 (1988). Furthermore, servicemembers

associated with loss of retirement pay, subject to

foundational requirements related to the reliability

of their projections, may present evidence of the

potential dollar amount subject to loss. Jd; cf

i i hc i

13

United States v. Henderson, 29 MJ 221 (CMA

1989). Accordingly, to the extent that a dismissal

affects retirement benefits including pay, we

conclude these procedures satisfy the meaningful

opportunity to be heard concerns of the Due

Process Clause. See generally Weiss v. United

States, 510 U.S. 163, 114 S.Ct. 752, 127 L.Ed. 1

(1994); Brock v. Roadway Exp., Inc., supra.

45 M.J. at 209.

The decisions of the Navy-Marine Corps Court of

Criminal Appeals and the Court of Appeals for the Armed

Forces in petitioner’s case are erroneous. Retirement-

eligible Navy officers have a property interest in their

expected retirement pay and benefits and existing court-

martial sentencing procedures do not afford them adequate

due process protections.

Retirement-eligible Navy officers have a property

interest in their expected retirement pay and benefits.

They have "an individual entitlement, grounded in . . . law,

which cannot be removed except for cause.*" Logan v.

Zimmerman, 455 U.S. at 430. A Navy officer who

completes 20-years of active service may apply for

retirement. See 10 U.S.C. § 6323(a)(1). Any officer

retired under this section is entitled to retired pay and other

benefits. See 10 U.S.C. § 6323(e)(retired pay); 10 U.S.C.

§ 1074(b)(medical and dental care); 10 U.S.C. §§ 1447-

1455 (survivor benefit plan). Such an officer cannot be

involuntarily separated except for cause. See generally 10

U.S.C. §§ 1181-1187 (Separation of Regular Officers for

Substandard Performance of Duty or for Certain Other

Reasons); SECNAVINST 1920.6A (Administrative

Separation of Officers). This statutory and regulatory

scheme creates an entitlement to retirement pay and

14

benefits sufficient to qualify as a "property interest" for

due process purposes.

Before a general court-martial may dismiss a

retirement-eligible officer it must consider the full nature {

and value of expected retirement pay and benefits. This is {

the only way the court-martial can intelligently assess the

propriety of adjudging a dismissal. Application of the

three-part test in Mathews v. Eldridge, 424 U.S. at 334,

supports this position:

1. The private interest at stake is the accused

officer’s expectation of retirement pay and benefits. This

is a valuable asset -- probably the officer’s most valuable

single asset.

2. If a sentencer is not aware of the exact nature

and value of this asset, there is a substantial risk that it will

assess an unintended penalty. The added procedural

safeguard of requiring the sentencer to consider the nature

and value of the accused’s expected retirement pay and

benefits ensures that the punishment imposed was the

punishment intended.

3. The Government has a strong interest in accurate

sentencing. If the sentencer is allowed to adjudge

dismissal of a retirement-eligible officer without knowing

the financial consequences of its decision, there is a

substantial risk that the sentence will later be impeached

when the sentencer learns of the unintended consequence

of its decision. Furthermore, there is no significant fiscal

or administrative burden to the government in providing

this information to the sentencing authority. See United

States v. Lee, 43 M.J. 518, 522 (A.F.Ct.Crim.App. 1995),

affd, _M.J. ___ (1996), cert. denied, 117 S.Ct. 961

(1997) (approximating a potential financial loss from a

punitive discharge is not an impractical task)(Becker, J.,

concurring in the result). Presentation of this information

to the sentencer could be easily handled in the same way

15

that information about military pay is presented --

announcement by the trial counsel at the start of the

sentencing hearing. See Manual for Courts-Martial, United

States (1995 ed.)(MCM), Rules for Courts-Martial

(R.C.M.) 1001(a)(1)(A)(i)(trial counsel shall ordinarily

present the service data relating to the accused taken from

the charge sheet); MCM at A4-1 (service data from charge

sheet includes total pay subject to forfeiture).

Petitioner’s failure to offer evidence of the value of

his retirement pay and benefits during the sentencing

portion of his court-martial does not waive the issue. The

Rules for Courts-Martial do not expressly address the

admission of such evidence during the sentencing hearing,

see R.C.M. 1001, and the case law prior to Swmrall was

ambiguous. See generally United States v. Blake, 30 M.J.

184 (C.M.A. 1990)(Government may use evidence of

future value of money stolen by accused to rebut evidence

of future value of accused’s retirement pay); United States

v. Henderson, 29 M.J. 221 (C.M.A. 1989)(effect of

punitive discharge on retirement benefits of servicemember

who was not retirement eligible was inadmissible as

collateral administrative consequence); United States v.

Griffin, 25 M.J. 423 (C.M.A.), cert. denied, 487 U.S. 1206

(1988)(not error for court, with accused’s consent, to

instruct members on effect of punitive discharge on

accused’s eligibility for retirement benefits); Lee, 43 M.J.

at 521 n.6 (The Court of Military Appeals has reserved

opinion on whether an actuarial estimate of the value of

retirement benefits could be relevant evidence in

sentencing). Furthermore, as no retirement-eligible officer

can be properly sentenced to a dismissal without

consideration of this information, the court-martial has a

sua sponte duty to obtain it, even if it is not offered by the

accused. Just as the court-martial must consider the

amount of the accused’s pay prior to adjudging forfeitures,

16

sO must it consider the value of a retirement-eligible

officer’s expected retirement pay and benefits. Therefore,

any adjudication of dismissal of a retirement-eligible

officer by a court-martial that did not consider the full

value of the accused’s expected retirement pay and benefits

violates the Due Process Clause of the Fifth Amendment

and cannot be affirmed.

The military judge did not state the reason why he

adjudged dismissal in petitioner’s case. A decision maker

must base his decision on the law and the evidence

adduced at the hearing. Goldberg v. Kelly, 397 U.S. 254,

271 (1970). To demonstrate compliance with this

elementary requirement, the decision maker should state

the reasons for his determination and indicate the evidence

he relied on. J/d.; see also Bandoy v. Commandant of -

Fourth Naval Dist., 495 F. Supp. 1092 (E.D. Pa.

1980)(Navy’s failure to provide any statement of reasons

for denying hardship discharge violated due process). This

"reasons requirement" is necessary to preserve the due

process right of meaningful review. Jd. at 1095. A

retirement eligible officer dismissed at general court-

martial has a right to appellate review of the

appropriateness of his sentence by a Court of Criminal

Appeals. See UCMJ, art 66(c), 10 U.S.C. § 866(c). The

only way for a Court of Criminal Appeals to review the

propriety of the adjudged dismissal is to know the military

judge’s reasons for adjudging it. The absence of such

reasons from the record violates petitioner’s Fifth

Amendment right to due process.

Application of the three-part test in Mathews v.

Eldridge, 424 U.S. at 334, provides additional support for

this position:

1. The private interest at stake is the accused

officer’s expectation of retirement pay and benefits. This

17

is a valuable asset -- probably the officer’s most valuable

single asset.

2. The sentencer under the current procedure is not

required to state the reason why it sentenced a retirement-

eligible officer to dismissal. This prevents appellate

authorities from accurately assessing the legality and

propriety of the adjudged dismissal. The added procedural

safeguard of having the sentencer state its reason for

adjudging dismissal of a retirement-eligible officer ensures

meaningful appellate review and ultimately ensures the

propriety of the approved punishment.

3. The Government has a strong interest in accurate

sentencing and meaningful appellate review. Both would

result from requiring the sentencer to state its reason for

adjudging a dismissal. Furthermore, there is virtually no

fiscal or administrative cost to this additional safeguard.

Judges and court-martial members are intelligent and

literate people who could easily provide a concise written

rationale for such an important decision.

In summiary, petitioner is a retirement-eligible

officer sentenced to dismissal in violation of the Due

Process Clause of the Fifth Amendment. Petitioner has a

property interest in his expected retirement pay and

benefits because by statute and regulation he cannot be

separated except for cause. The court-martial that

sentenced petitioner did not consider the nature and value

of his retirement pay and benefits and did not state any

reason why a sentence that included dismissal was

adjudged.

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

HOWARD BARRY GOODMAN

Lieutenant Commander,

Judge Advocate General’s Corps

U. S. Navy

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Bldg. 111

Washington, DC 20374-1111

(202) 433-4161

Counsel for Petitioner

May 1997

APPENDICES

aE

APPENDIX A

U.S. COURT OF APPEALS FOR THE ARMED

FORCES

USCA Dkt. No. 96-1289/NA

Crim. App. No. 94-1878

UNITED STATES, Appellee

V.

JACK R. CARPENTER, Jr. (536-56-8121), Appellant

On consideration of the petition for grant of review of

the decision of the United States Navy-Marine Corps Court

of Criminal Appeals, in light of United States v. Sumrall,

No. 95-0720 (Sept. 30, 1996), it is, by the Court, this 26th

day of February, 1997,

ORDERED

That said petition is hereby granted on Issues I and II as

raised by appellate defense counsel; and

That the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Navy

Appellate Defense Counsel (GOODMAN)

Appellate Government Counsel (LIVINGSTON)

(1a)

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APPENDIX B |

IN THE U.S. NAVY-MARINE CORPS COURT OF 7

CRIMINAL APPEALS |

WASHINGTON NAVY YARD |

WASHINGTON, DC

BEFORE

J.E. DOMBROSKI T.D. KEATING

WILLIAM J. LUCAS

UNITED STATES

V.

Jack R. CARPENTER, Jr., 537 56 8121

Commander (0-5), U.S. Navy

NMCM 94 01878 Decided 24 June 1996

Sentence adjudged 15 July 1994. Military Judge: H.K.

Jowers. Review pursuant to Article 66(c), UCMJ, of

General Court-Martial convened by Commander, Naval

Base, Charleston, SC.

LCDR HOWARD B. GOODMAN, JAGC, USN, Appellate

Defense Counsel

oe

LT JOHN R. LIVINGSTON, Jr., JAGC, USNR, Appellate

Government Counsel

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DOMBROSKI, Chief Judge:

We have examined the record of trial, the assignments of

error, and the Government’s response thereto, and the

?. THE SPECIFICATION UNDER CHARGE V,

ALLEGING THAT APPELLANT "HOSTED" A

WOMAN, NOT HIS WIFE, AT HIS CHANGE OF

COMMAND, FAILS TO STATE AN OFFENSE.

Il. THE STAFF JUDGE ADVOCATE WAS

DISQUALIFIED FROM PREPARING THE POST-

TRIAL RECOMMENDATION.

il. AN UNSUSPENDED DISMISSAL IS

INAPPROPRIATELY SEVERE UNDER THE

CIRCUMSTANCES OF THIS CASE.

IV. THE UNSUSPENDED DISMISSAL OF APPELLANT,

A RETIREMENT ELIGIBLE OFFICER, CONSTITUTES

AN EXCESSIVE FINE IN VIOLATION OF THE

EIGHT AMENDMENT TO THE U.S. CONSTITUTION.

¥ ALL THE CHARGES AND _ SPECIFICATIONS

SHOULD BE DISMISSED BECAUSE OF UNLAWFUL

COMMAND INFLUENCE. SEE MOTION FOR

DISMISSAL, ENCL (2) TO THE DEFENSE RESPONSE

TO THE SJA’S RECOMMENDATION AND REQUEST

FOR CLEMENCY, DTD 27 SEP 94; BUT SEE

ADDENDUM TO SJA’S RECOMMENDATION, DTD

30 SEP 94.

Vi. APPELLANT WAS TRIED IN VIOLATION OF UCMJ,

ARTICLE 34 WHERE THE STAFF JUDGE

ADVOCATE FAILED TO PREPARE A NEW

PRETRIAL ADVICE LETTER AFTER ALL THE

CHARGES ON THE ORIGINAL CHARGE SHEET

WERE DISMISSED AND ALL NEW CHARGES WERE

PREFERRED. (CITATIONS OMITTED.)

Vil. THE CONVENING AUTHORITY ABUSED HIS

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points raised at oral argument. We have concluded that

except with regard to the first assignment of error and the

charge of conduct unbecoming an officer and gentleman,

the findings and sentence are correct in law and fact and

that no error materially prejudicial to the substantial rights

of the appellant was committed.

Background

Pursuant to his pleas of guilty, the appellant was

convicted by a general court-martial, military judge alone,

of violating lawful general orders of the Secretary of the

Navy and the Office of Government Ethics (10

specifications), making false official statements (43

specifications), larceny of military property (20

specifications), fraudulent claims against the United States

(46 specifications), conduct unbecoming an officer and

gentleman (1 specification), adultery (2 specifications), and

obtaining services under false pretenses (7 specifications),

in violation of Articles 92, 107, 121, 132, 133 and 134,

Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§

892, 907, 921, 932, 933, and 934 respectively. The

adjudged sentence included confinement for 30 months,

total forfeitures, loss of lineal precedence, and dismissal.

The military judge recommended that execution of

confinement in excess of 18 months and all forfeitures be

suspended conditioned on the appellant establishing and

maintaining an allotment of all pay and allowances in favor

of his wife and children. The convening authority

DISCRETION BY DENYING APPELLANT’S

REQUEST FOR AN ADDITIONAL TEN DAYS IN

WHICH TO RESPOND TO THE STAFF JUDGE

ADVOCATE’S POST-TRIAL RECOMMENDATION.

(CITATIONS OMITTED.)

———————————————eeeerere

Sa

approved the sentence and partially suspended execution in

conformity with the military judge’s recommendation.

There was no pretrial agreement. Before this Court, the

appellant makes eight assignments of error. As noted

above, we find merit only in the first assignment of error.

A naval academy graduate and the commanding officer

of a naval destroyer, the appellant was one of the Navy’s

fast-rising stars, named to receive the prestigious Stockdale

award before the misconduct underlying the charges in this

case came to light. The appellant’s charges stem primarily

from two extramarital affairs, one in particular. In the

course of the providence inquiry, the appellant related that

over a two-year period, he engaged in sexual relations with

two women, AW and VW, while he was married to

someone else. The ship he commanded held a telephone

credit card, which the appellant used on numerous

occasions to make personal calls. He also used the ship’s

International Maritime Satellite Telecommunications

System [INMARSAT] for personal calls. These personal

calls utilized government equipment and services totalling

in excess of $14,000.00. The appellant also made

numerous false statements to personnel of his command

regarding his need for official travel orders. He made the

trips on official orders for personal reasons (his

extramarital affairs) and then submitted false travel claims,

receiving cash and checks for some 20 trips totaling about

$9,350.00.

Conduct Unbecoming an Officer

The specification of Charge V alleges that the appellant

did "behave himself in an improper manner, by hosting

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[AW], a woman not his wife, in front of the crew of USS

JOHN RODGERS (DD 983), as well as guests attending

the change of command of said ship, including

representatives of the Chilean Armed Forces, to the

disgrace of the armed forces." The appellant contends that

the specification, on its face, failed to allege an offense,

and so he could not providently plead guilty.

In United States v. Norvell, 26 M.J. 477, 480 n.2 (C.M.A.

1988), the Court of Military Appeals noted that an

"{a]ppellant’s standing to challenge a specification on

appeal after a voluntary plea of guilty is considerably less

than if [the app. :ant] had put the Government to its proof.

United States v. Watkins, 21 M.J. 208 (C.M.A. 1986);

United States v. Hoskins, 17 M.J. 134 (C.M.A. 1984)."

After citing the test for legal sufficiency of a pleading as

set forth in United States v. Sell, 3 C.M.A. 202, 11 C.M.R.

202 (1953),? the Court in Norvell opined that "[i]f the

specification pleads conduct which is facially innocuous,

the fact that the accused pleaded guilty to the charge will

not save it for the Government." 26 M.J. at 480 (citation

omitted); see also United States v. Kroop, 38 M.J. 470

(C.M.A. 1993); Manual for Courts-Martial (1995 ed.), Part

IV, ¥ 5%c).

"The true test of the sufficiency of an indictment is not whether it could

have been made more definite and certain, but whether it contains the

elements of the offense intended to be charged, and sufficiently apprises the

defendant of what he must be prepared to meet; and, in case any other

proceedings are taken against him for a similar offense, whether the record

shows with accuracy to what extent he may plead a former acquittal or

conviction. Furthermore, when the pleadings have not been attacked prior

to findings and sentence, it is enough to withstand a broadside charge that

they do not state an offense, if the necessary facts appear in any form or by

fair construction can be found within the terms of the specification." See 3

C.M.A. 206, 11 C.M.LR. at 206.

7a

We conclude that the specification, on its face, pleads

conduct that is facially innocuous. The allegation that the

appellant "hosted" a woman not his wife at his change-of-

command ceremony does not, on its face, implicate any

form of conduct unbecoming an officer. Indeed, a

commanding officer "hosts" all the guests attending an

official function on his ship, be they male, female, related

or unrelated to the officer. When we look to the

providence inquiry for any additional content for the act of

"hosting," we find that the appellant stated that AW

attended his change-of-command ceremony in Valparaiso,

Chile; that he did not hold her out to be his wife, and there

were people in attendance who knew she was not

appellant’s wife; that she sat in an assigned seat, attended

the reception on board the ship, and left in a car with the

appellant. Record at 95-97. Based on these facts, we

cannot affirm the finding of guilty of conduct unbecoming

an officer. We will reassess the sentence.

The Sentence

In Assignments of Error III, IV, and VIII, the appellant

challenges his sentence, which includes an unsuspended

dismissal, on grounds that an unsuspended dismissal is

inappropriately severe and, since appellant was a

retirement-eligible officer, the sentence violates the Eighth

and Fifth Amendments to the United States Constitution.

We find no merit in these assignments.

We turn first to the appellant’s claim that an unsuspended

dismissal of a retirement-eligible officer constitutes an

excessive fine in violation of the Eighth Amendment to the

U.S. Constitution. The appellant cites two U.S. Supreme

Court forfeiture cases, which applied the Eighth

Amendment’s excessive fine limitation, as support for his

—

8a

contention that his potential loss of retirement benefits

from a dismissal is similarly limited by the Eighth

Amendment. In the first instance, we do not agree that the

Racketeer Influenced and Corrupt Organizations (RICO)

Act in personam forfeiture at issue in Alexander v. United

States, 509 U.S. 544 (1993) and the in rem civil forfeiture

at issue in United States v. Austin, 509 U.S. 602 (1993) are

analogous to the potential loss of retirement benefits as a

result of an executed court-martial sentence of dismissal of

a retirement-eligible officer. To characterize the latter as

a fine and a punishment of the court-martial ignores the

fact that the loss of retirement benefits is a potential

consequence of the conviction and sentence and not part of

the sentence itself. Further, the Secretary of the Navy or

a designate must approve and order executed the dismissal

of a commissioned officer. Rules for Courts-Martial

[R.C.M.] 1113(c)(2); 1206. The U.S. Air Force Court of

Criminal Appeals has recently considered this issue in

United States v. Lee, 43 M.J. 518 (A.F.Ct.Crim.App.

1995), rejecting a constitutional challenge to a dismissal as

constituting an excessive fine under the Eighth

Amendment. We reach the same conclusion in this case.

The appellant additionally argues that the dismissal of a

retirement-eligible officer violates the due process clause

of the Fifth Amendment to the United States Constitution.

Appellant contends that the statutory and regulatory

scheme for regular commissioned officers "creates an

entitlement to retirement pay and benefits sufficient to

qualify as a ‘property interest’ for due process analysis."

Supplemental Brief and Assignment of Error on Behalf of

Appellant at 4. Appellant claims that his dismissal violates

due process because the military judge did not consider the

actuarial value of his potential retirement benefits and

because the military judge did not state reasons for

a ee ee ee a ee

9a

adjudging a dismissal.

Initially, we note that the appellant did not seek to

introduce at trial any evidence regarding the specific

actuarial value of retirement benefits, were he to lose these

benefits as a result of execution of the punishment of

dismissal.’ As a retirement-eligible officer, we believe it

was open for the appellant to introduce such evidence on

sentencing. See United States v. Griffin, 25 M.J. 423

(C.M.A.), cert. denied, 487 U.S. 1206 (1988); compare

United States v. Henderson, 29 M.J. 221 (C.M.A. 1989)

(accused was not retirement eligible). See also United

States v. Lee, 43 M.J. at 521 n.6. In any event, there was

evidence before the military judge regarding the appellant’s

service status and financial status, including a separation

agreement whereby the appellant’s wife would receive,

inter alia, all the appellant’s retirement pay. Record at

235; Defense Exhibit C at 4. We may presume that the

military judge was aware of the collateral consequences of

an executed dismissal, including the loss of "substantially

all benefits administered by the Veteran’s Administration

and the [Navy] establishment.” Military Judges’

Benchbook, DA Pam. 27-9, Update Memo 11 of 19 July

1994, page 2-136. Notwithstanding, appellant argues that

the military judge had a sua sponte duty to obtain

information regarding the actuarial value of the appellant’s

potential retirement benefits.

A fundamental flaw in the appellant’s due process

argument is the notion that the prospective retirement

benefits of a retirement-eligible officer become a vested

*In his brief, the appellant indicates that the actuarial value of his

retirement benefits is $900,000.00. Supplemental Brief and Assignment of

Error on Behalf of Appellant at 2.

10a

property right at the time the officer becomes retirement-

eligible. The Government correctly points out that under

the statute, an officer must be "an officer of the Navy or

Marine Corps" to be retired at the discretion of the

President. 10 U.S.C. § 6323. When officer status is

terminated by reason of an approved and executed

dismissal, the individual is no longer "an officer of the

Navy or the Marine Corps" and eligibility to receive

retirement benefits ceases. This is more than a semantic

exercise. Continued honorable service is a requirement for

commissioned officer status, even in retirement. See

McCarty v. McCarty, 453 U.S. 210 (1981) (military retired

pay characterized as reduced compensation for reduced

current service). Dishonorable service resulting in an

approved and executed dismissal adjudged by a general

court-martial terminates officer status and the rights and

privileges attending thereto.

It is difficult to conceive how a general court-martial and

the presentencing procedure prescribed in our rules could

be viewed as falling short of the requirements of due

process under the Fifth Amendment to the US.

Constitution. See R.C.M. 1001. Indeed, the military rules

even permit an unsworn statement from an accused and

relaxation of the rules of evidence for admission of matters

in extenuation and mitigation. R.C.M. 1001(c)(2) and (3).

The appellant never sought to introduce the actuarial value

of a possible future stream of income from retirement pay.

We can find no precedent to even remotely suggest that the

military judge has a sua sponte duty to obtain such

information. Likewise, we do not view due process as

requiring a court-martial to state reasons for adjudging a

aaa =~.

lla

dismissal or any other form of punishment.’ Sentence

determination is within the discretion of the court-martial,

subject to the limitations set forth in the Manual for

Courts-Martial. R.C.M. 1002. Except in very limited

circumstances, polling of members (and, by analogy,

questioning of the military judge in a trial by military

judge alone) concerning deliberation and voting on a

sentence are prohibited. R.C.M. 1007(c) and 1008. In

trials before members, instructions on sentence normally

include the following: "[Y]ou alone are responsible for

determining an appropriate sentence in this case. In

arriving at your determination, you should select the

sentence which will best serve the ends of good order and

discipline, the needs of the accused, and the welfare of

society." Military Judge’s Benchbook, DA Pam. 27-9,

Update Memo 11 of 19 July 1994, page 2-144. In trials by

court-martial, sentence appropriateness is determined by

the sentencing authority, based on an_ individualized

consideration of the offender and the nature and

seriousness of the offenses committed. United States v.

Snelling, 14 M.J. 267, 268 (C.M.A. 1982). We conclude

that due process under the Fifth Amendment does not

impose an additional requirement for the sentencing

authority to rationalize all or any part of a sentence.

We note that the appellant pled guilty without benefit of

a pretrial agreement. He made restitution to the United

States for the monetary value of the personal telephone

calls and fraudulent travel claims. We also note his stellar

record of professional performance before these offenses

came to light and the adverse impact on the appellant’s

“The only exception is in capital cases wherein a sentence of death

may not be adjudged unless the members find beyond a reasonable doubt one

or more of the aggravating factors set forth in the rules. R.C.M. 1004.

)

12a

family should he lose all retirement benefits as a result of

his conviction and sentence. We nevertheless conclude

that a dismissal is an entirely appropriate punishment for

the offenses and for this appellant, given the number and

nature of offenses and the fraud and abuse of official

position as a commanding officer inherent in the

appellant’s misconduct. See Snelling, 14 M.J. 267 (C.M.A.

1982); see also United States v. Healy, 26 M.J. 394

(C.M.A. 1988). Assignments of Error III, [V, and VIII are

without merit.

Remaining Assignments of Error

We have carefully considered the remaining assignments

of error, Il, V, VI, and VII, and conclude that they are

without merit.

Conclusion

The findings of guilty of Charge V and its Specification,

a violation of Article 133, UCMJ are set aside and that

Charge and Specification are dismissed. The remaining

findings of guilty are affirmed. Upon reassessment of the

sentence, we find the sentence appropriate for the

remaining offenses and for this appellant. United States v.

Jones, 39 M.J. 315 (C.M.A. 1994). Accordingly, the

sentence is affirmed.