Petition for Writ of Certiorari — Adams v. United States (No. 08-170)
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Supreme Court, U.S.
4 FILE. .
D
(\ 08-170 AUG 11 2008
No. OFFICE OF THE CLERK
In the Supreme Court of the United States
AIRMAN ANTONYO T. ADAMS,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
Anthony D. Ortiz Shannon A. Bennctt
Captain, U.S. Air Force Major, U.S. Air Force
Counsel of Record
Air Force Appellate
Tiffany M. Wagner Defense Division
Captain, U.S. Air Force 112 Luke Ave, Ste 343
Bolling AFB, DC 20032
(202) 767-1562
1
QUESTION PRESENTED
In McClaughry v. Deming, 186 U.S. 49 (1902), —
this Court recognized the importance of statutory
construction of a court-martial as an essential
component for jurisdiction, stressing that a court-
martial may only have jurisdiction if it is
convened and constituted in entire conformity
with the provisions of the statute. Here, the final
convening order unequivocally states that the
general court-martial would be constituted with
only the five members listed on the final order.
However, members on prior orders were seated in
the court-martial in direct violation of 10 U.S.C. §
825 and Rule for Courts-Martial 504. Does a
court-martial have jurisdiction when members of
the court-martial panel were not _ properly
constituted to the court by the final convening
order?
TABLE OF CONTENTS
TABLE OF AUTHORITIBSG..................... lll-1v
RP PMI ee SPRA IY. osnvcsicsercnscosccesesscevesses 1
INTE BIO saievecccesscchssssevenssessevsguesens 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ..............0.....0... 1-3
STATEMENT OF THE CASE ................... 4-6
REASONS FOR GRANTING THE WRIT. 6-7
CONTRARY TO 10 U.S.C. § 825, AND
MCCLAUGHRY v. DEMING, 186 U.S.
49 (1902), THE COURT OF APPEALS
FOR THE ARMED FORCES FOUND
THAT SEATING MEMBERS NOT
CONSTITUTED TO THE COURT-
MARTIAL BY THE CONVENING
AUTHORITY IN THE FINAL
CONVENING ORDER WAS AN
ADMINISTRATIVE ERROR
SUGGESTING THAT AMBIGUOUS
CONVENING ORDERS NOT
ABIDING BY STATUTE ARE NOT
JURISDICTIONAL ISSUES.
MF TIEI OY 60 Sic svrssiveerescesssevcsewcnevcsonrvncsies 17
icra naerissedenesceressesicerswnneett la
TABLE OF AUTHORITIES
Supreme Court of the United States Cases
Bowles v. Russell,
fh ae ee >) a ae ees 6
McClaughry v. Deming,
186 U.S. 49 (1902) ..... 6,7,8,9, 10,13,14,15
Runkle v. United States,
TOE ER PI iio 11,16
United States Court of Appeals Cases
United States v. Adams,
66 MJ. 265 (C. AA.F. 2008) ..........0...00cc0ccene-cs. ]
United States v. Adams,
ACM 36226 (A.F. Ct. Crim. App. 20 June 2007)
dc dbecdd ih caste Tikes aan ah odds ee eae ]
United States v. Mack,
58 M.J. 418 (C.A.A.F. 20093) .................. 7,8,9.15
United States v. Padilla,
©. SE Oe TO bic idvveevi cavsicdsscorcee 11
United States v. Wilson
GS Od. 14 CE BAG, FF oviidideonccisccrvevceccacnees 9
Federal Statutes
ESL eo. enim aee 1,2,3,11
Ee ae. ee ie een cee 1
BER © ae, | ER ORNR NEO NO EMR TT een imer” MIN Nts Attic sh 1
Miscellaneous
Air Force Instruction 51-201 .............cccccccssss 12°13
Rule for Courts-Martial 508 ......................... 12-13
Rule for Courts-Martial 504 ...........0............. 11-12
1
The Petitioner, Airman Antonyo ‘Il’. Adams,
respectfully prays that a writ of certiorari issue to
review the order and judgment of the United States
Court of Appeals for the Armed Forces entered in
his case on May 13, 2008.
OPINIONS BELOW
The order and judgment of the United States
Court of Appeals for the Armed Forces, United
States v. Adams, 66 M.J. 255 (C.A.A.F. 2008), is
located at Appendix (App.) la. The order and
judgment of the United States Air Force Court of
Criminal Appeals, United States v. Adams, ACM
36226 (A.F. Ct. Crim. App. 20 June 2007), is located
at App. 19a.
JURISDICTION
The judgment of the United States Court of
Appeals for the Armed Forces was entered on May
13, 2008. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1259(3) (2000) and 10 U.S.C. §
867a(a) (2000).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
10 U.S.C. § 825 (2000) provides:
Who may serve on courts-martial
(a) Any commissioned officer on active duty is
cligible to serve on all courts-martial for the trial
2
of any person who may lawfully be brought before
such courts for trial.
(b) Any warrant officer on active duty is eligible to
serve on general and special courts-martial for
the trial of any person, other than a commissioned
officer, who may lawfully be brought before such
courts for trial.
(c) (1) Any enlisted member of an armed force on
active duty who is not a member of the same unit
as the accused is eligible to serve on general and
special courts-martial for the trial of any enlisted
member of an armed force who may lawfully be
brought before such courts for trial, but he shall
serve as a member of a court only if, before the
conclusion of a session called by the military
judge under section 839(a) of this title (article
39(a)) prior to trial or, in the absence of such a
session, before the court is assembled for the trial
of the accused, the accused personally has
requested orally on the record or in writing that
enlisted members serve on it. After such a
request, the accused may not be tried by a general
or special court-martial the membership of which
does not include enlisted members in a number
comprising at least one-third of the total
membership of the court, unless eligible enlisted
members cannot be obtained on account of
physical conditions or military exigencies. If such
members cannot be obtained, the court may be
assembled and the trial held without them, but
the convening authority shall make a detailed
3
written statement, to be appended to the record.
stating why they could not be obtained.
(2) In this article, “unit" means any
regularly organized body as defined by the
Secretary concerned, but in no case may it be a
body larger than a company, squadron, ship's
crew, or body corresponding to one of them.
(d) (1) When it can be avoided, no member of an
armed force may be tried by a court-martial any
member of which is junior to him in rank or
grade.
(2) When convening a court-martial, the
convening authority shall detail as members
thereof such members of the armed forces as, in
his opinion, are best qualified for the duty by
reason of age, education, training, experience,
length of service, and judicial temperament. No
member of an armed force is eligible to serve as a
member of a general or special court-martial
when he is the accuser or a witness for the
prosecution or has acted as investigating officer or
as counsel in the same case.
(e) Before a court-martial is assembled for the
trial of a case, the convening authority may
excuse a member of the court from participating
in the case. Under such regulations as the
Secretary concerned may prescribe, the convening
authority may delegate his authority under this
subsection to his staff judge advocate or legal
officer or to any other principal assistant.
4
STATEMENT OF THE CASE
In this case, the general court-martial convening
authority unsuccessfully convened Petitioner’s
general court-martial when he did not clearly and
unequivocally transfer adequate members _ to
establish jurisdiction under 10 U.S.C. § 825.
Petitioner was charged with rape, use of
marijuana, absence without leave, and the utterance
of several worthless checks. Prior to his court-
martial, the general court-martial convening
authority appointed officer and enlisted members to
act as Petitioner’s court-martial panel on the
following orders: Special Orders AB-1, AB-7, and
AB-9.
After voir dire and challenges to members, the
court-martial panel fell to four members, which is
below the required quorum under 10 U.S.C. § 8285.
As a result, the judge ordered a recess in the
proceedings to obtain new members.
The convening authority issued a new order,
Special Order Number AB-12 dated 15 December
2004, which stated that “[t]he court will be constituted
as follows:” and listed only five officer members not
included on the prior orders. Special Order AB-12
also read:
All cases referred to the general court-
martial convened by Special Order AB-1,
this headquarters, dated 8 October 2004,
as amended by Special Order AB-7, this
headquarters, dated 24 November 2004,
5
ana Special Order AB-9, this
headquarters, dated 8 December 2004, in
which the court has been assembled will
be brought to trial before the court
hereby convened.
After a new voir dire proceeding with only the
members lsted on AB-12, seven members sat on
Petitioner’s court-martial. Only three of the members
listed by Special Order AB-12 actually sat on
Petitioner’s court-martial. The remaining members
were officer and enlisted members appointed by the
prior convening orders. There was no challenge by
trial defense counsel to jurisdiction or the composition
of Petitioner’s court-martial panel.
The Air Force Court of Criminal Appeals,
determined, among other things, whether the court-
martial had proper jurisdiction when Special Order
AB-12 did not transfer members from the prior
orders, but these members nonetheless sat on
Petitioner’s court-martial. App. 18a-36a. After
consideration of the issue, the Air Force court
affirmed Petitioner’s court-martial. The court held
that all parties considered Special Order AB-12 a
third amending order and not an order constituting
a new court. The Air Force court determined if, in
the end, the Petitioner still received a fair trial.
Despite the administrative errors that occurred in
this case, the court found that the Petitioner was not
prejudiced by these mistakes and received a fair
trial.
6
The Court of Appeals for the Armed Forces
granted review of the case to determine whether
Petitioner’s court-martial had proper jurisdiction
when Special Order AB-12 did not transfer members
appointed by the prior orders. App. la-17a. The
court held that there was no jurisdictional defect in
the composition of Petitioner’s court-martial. Each
of the members not listed on the final order was
selected by the convening authority and there was
no evidence that the convening authority excused
them from Petitioner’s court-martial. Additionally,
the court concluded that there was no evidence the
convening authority withdrew the charges in order
to refer them to a new court-martial. The court also
reasoned that the language of Special Order AB-12
citing to the prior court-martial orders demonstraved
that the five members were selected only to bring the
court-martial to quorum.
The lower courts did not directly address this
Court’s ruling in McClaughry v. Deming, 186 U.S. 49
(1902).
REASONS FOR GRANTING THE WRIT
This Honorable Court should grant this petition
to enforce its prior holding in McClaughry v.
Deming, 186 U.S. 49 (1902), which requires a clear
and unequivocal establishment of jurisdiction in
order to create a court-martial. The lower courts’
decisions are in direct contravention to the express
holding of this Court.
7
Additionally, the importance of comphance with
statutory provisions in relation to jurisdiction has
been stressed by this Honorable Court. Recently, in
Bowles v. Russell, 127 S. Ct. 2360 (2007), this
Honorable Court held that statutorily set time limits
must be strictly comphed in order to establish
jurisdiction. This Honorable Court has recognized
and _ strictly construed jurisdictional statutory
compliance. As noted in McClaughry, a court-
martial is a creature of statute and must be
convened in conformity with the provisions of the
statute or there is no jurisdiction. McClaughry, 186
U.S. at 62.
CONTRARY TO 10 U.S.C. § 825, AND
MCCLAUGHRY v. DEMING, 186 U.S.
49 (1902), THE COURT OF APPEALS
FOR THE ARMED FORCES FOUND
THAT SEATING MEMBERS NOT
CONSTITUTED TO THE COURT-
MARTIAL BY THE CONVENING
AUTHORITY IN THE ~ FINAL
CONVENING ORDER WAS AN
ADMINISTRATIVE ERROR
SUGGESTING THAT AMBIGUOUS
CONVENING ORDERS NOT
ABIDING BY STATUTE ARE NOT
JURISDICTIONAL ISSUES.
Only members who are detailed to a _ specific
court-martial may serve on that court-martial panel.
United States v. Mack, 58 M.J. 413, 416 (C.A.A.F.
2003). “When the convening orders and the record
make it clear that an individual who served on a
8
court-martial panel was never detailed to do so, [the
Court of Appeals for the Armed Forces] has held that
the court-martial was improperly constituted and
the findings must be set aside.” Jd. at 416 (citing
United States v. Harnish, 31 C.M.R. (C.M.A. 1961)).
“When the record reflects an ambiguity as_ to
whether an individual was detailed to serve at a
particular court-martial, we look to the intent of the
convening authority with respect to service of that
member on that court-martial panel.” United States,
v. Mack, 58 M.J. 413 (C.A.A.F. 2003) (citing United
States v. Padilla, 5 C.M.R. 31 (C.M.A. 1952)). If
there is an ambiguity but no evidence that the
convening authority's intent was to the contrary,
"the construction of the convening orders by the
participants of [the] trial is controlling." Jd. (quoting
United States v. Gebhart, 34 M.J. 189, 193 (C.M.A.
1992)).
In McClaughry v. Deming, 186 U.S. 49 (1902),
Captain Deming’s court-martial was constituted in
direct violation of a statute and, as a result, the
court-martial had no effect. Although Captain
Deming was an officer of the Volunteer Army of the
United States, created during the Spanish-American
War, he was court-martialed by a panel composed of
Regular army officers. J/d. at 53-54. Under the
Articles of War then in effect, officers of the Regular
Army were not competent to sit on courts-martial to
try the officers or soldiers of other forces. /d. at 54.
In determining the jurisdictional question, this
Court stressed the importance of — statutory
9
construction. “A court-martial is the creature of
statute, and, as a body or tribunal, it must be
convened and constituted in entire conformity with
the provisions of the statute, or else it is without
jurisdiction.” Jd. at 62. This Court questioned
jurisdiction of a court-martial “which is composed of
officers incompetent to sit on such court; of officers
who are placed there in direct and plain violation of
the act of Congress|[.]” Jd. at 63. In essence, courts-
martial that do not conform to their statutory
requirements are “contrary to and in complete
violation of law.” /d. at 64.
There is no ambiguity concerning’ the
appointment of the court-martial that tried
Petitioner; it was to consist only of the five members
named in Special Order AB-12. Special Order AB-12
does reference Special Orders AB-1, AB-7, and AB-9
and notes that “[a]ll cases referred to the general
court-martial . . . in which the court has been
assembled, will be brought to trial before the court
hereby convened.” However, AB-12 unequivocally
states “(tlhe court will be constituted as follows:” and
lists only five members.
The explicit language of AB-12 only lists five
members and does not incorporate members listed
on other orders associated with Petitioner’s court-
martial. Thus, there was no ambiguity in the final
order. The remedy in this case has been well-
established — the court is improperly convened and
must be set aside. See Mack, 58 M.J. at 416.
10
Similarly, the Court of Appeals for the Armed
Forces has previously emphasized the importance of
strict construction of the convening authority’s
language in regards to the convening authority’s
action. In United States v. Wilson, 65 M.J. 140
(C.A.A.F. 2007), the majority noted, “[Wlhen the
plain language of the convening authority’s action is
facially complete and unambiguous, its meaning
must be given effect.” 65 M.J. at 141. In the present
case, the language of AB-12 is complete and
unambiguous — five members were detailed to sit on
Petitioner's court-martial. As such, this
unambiguous meaning must be given effect.
Assuming arguendo that AB-12 is read as an
attempt to incorporate prior orders, it fails for two
reasons: 1) it does not affirmatively or unequivocally
state whom the members are; and 2) it fails to follow
statutory and procedural requirements for convening
a general court-martial. This Court’s precedent
establishes the consequences of such defects — a
finding of no jurisdiction. See McClaughry supra.
The government cannot make an affirmative
showing that the convening authority transferred
the remaining members from orders from AB-01,
AB-07, and AB-09 by the final convening order. The
court-martial, therefore, had no jurisdiction because
such a transference cannot be presumed. As this
Court has emphasized, to give effect to a court-
martial’s sentence, “it must appear affirmatively and
unequivocally that the court was legally constituted:
that it had jurisdiction: that all the statutory
regulations governing its proceedings had_ been
11
complied with, and that its sentence was
conformable to law. McClaughry v. Deming, 186
U.S. at 63 (quoting Runkle v. United States, 122
U.S. 543, 556 (1887)). Crucially, this Court then
observed, “There are no presumptions in its favor, so
far as these matters are concerned.” /d.
Thus, AB-12 must be relied upon by the face of
the document itself. In Runkle v. United States, this
Court relied primarily on a facial analysis of the text
of the order to determine if the President acted upon
Major Runkle’s court-martial. Runkle, 122 U.S. at
558-60. In particular, this Court observed that the
order was signed by the Secretary of War alone, and
the personal action of the President in the matter
was not mentioned, except in the remission of a part
of the sentence. /d. at 559. Nothing in the order was
“an affirmative statement that ‘the whole
proceedings’ had been laid before him for action, or
that he personally approved the sentence.” /d. at
509. In the present case, nothing in AB-12 was an
affirmative statement that transferred members
from preceding orders to Petitioner’s court-martial.
As this Court has held, jurisdiction cannot be
presumed absent this affirmative statement.
Finally, AB-12 fails to properly convene
Petitioner's court-martial because it did not comply
with governing statute and _ regulations. The
responsibility for the composition of a court-martial
panel rests with the convening authority. Mack, 58
M.J. at 416; Art. 25, UCMJ,10 U.S.C. § 825 (2000).
The members of a court-martial panel are detailed
for such service by the convening authority. Article
12
25(b)(d)(2) requires that the convening authority
“shall detail ... members.” Rule for Courts-Martial
(RCM) 504(d)(1) provides that the convening order
“shall designate the type of court-martial and detail
the members and may designate where the court-
martial will meet.” Further, RCM 504 clearly states
that a court-martial is created by a convening order
of the convening authority and is a power that
cannot be delegated. RCM 504(a)(b)(4).
RCM 503 allows an enlisted accused to request
enlisted persons to serve on his or her court-martial.
If a request is made, an enlisted accused may not be
tried by a panel that does not include at least one-
third enlisted members unless eligible enlisted
members cannot be obtained because of physical
conditions or military exigencies. /d. If tho
appropriate number cannot be obtained, the trial
may proceed, but the convening authority “shall
make a detailed written explanation why enlisted
members could not be obtained which must be
appended to the record of trial.” /d.
Air Force Instruction (AFD) 51-201,
Administration of Military Justice, dated 26
November 2003, prescribes rules for convening
orders:
Paragraph 5.8.1. Generally. Prepare
convening orders in accordance with
RCM 504, 1302, and this chapter.
Authenticate convening orders
according to this instruction .... Avoid
publishing several amending orders to
13
the initial convening order. Avoid oral
amendments, unless absolutely
necessary, and ensure they’ are
confirmed by written orders. Generally,
issue no more than two amendments to
the original order. If it is necessary to
further amend the convening order,
publish a new order convening the
court-martial and transfer all cases in
which the court has not yet been
assembled to the new order. Convening
orders must cite all orders amending
the convening order. An appointing
order containing a savings clause is not
an amending order.
5.8.3. Identification of Members.
Special orders convening a_= court-
martial should contain the name, rank,
and unit of all persons detailed....
(internal citations omitted) Gnternal emphasis
omitted).
Statutory and regulatory procedural
requirements mandate that the convening authority
or his delegate specifically state the members
convened for a court-martial. In this case, assuming
the convening authority wanted members listed on
prior orders to sit on Petitioner’s court-martial, AB
12 was required to expressly incorporate these
members. It did not. If seating the prior members
was error, then the convening authority thus also
failed to acquire enlisted members or append to the
14
record of trial an explanation for this failure, as
required by RCM 503.
In McClaughry, this Court emphasized that a
court-martial is a mere creature of the statute and
must be created under its provisions. McClaughry,
186 U.S. at 63-64. It is a special body convened for a
specific purpose, and when that purpose is
accomplished, its duties are concluded and the court
is dissolved. /d. at 63. It has no continuous
existence, but under the provisions of the statute it
is called into being by the proper officer, who
constitutes the court itself by the very act of
appointing its members. /d. If the law governing its
creation was violated, then the court-martial lacked
the necessary statutory authority for its existence.
Therefore it lacked jurisdiction over the defendant or
the subject-matter of the charges against him. /d. at
65.
In the present case, it cannot be assumed that
Special Order AB-12 attempted to incorporate other
members. On the contrary, any such assumption
would offend Supreme Court case law. Because the
court-martial did not comply with the order that
established it, it “acted contrary to and in complete
violation of law.” McClaughry, 186 U.S. at 64.
The government cannot rely upon the actions of
the parties at Petitioner's court-martial to gain
jurisdiction. Under the express language of this
Honorable Court:
15
It is difficult for us to understand how
an ephemeral court, composed of men
detailed as members, each one of whom
is so detailed in direct violation of the
statute on that subject which prohibits
their sitting, can obtain any jurisdiction
over the subject-matter or person even
by the consent of the defendant. In
those cases where the judgment
rendered by a disqualified judge was
held free from attack because of a
waiver, it can at least be said there was
a valid court for other purposes than
the trial or hearing of the particular
case, and that the objection was simply
a personal one, and should be made
before the trial or it must be deemed
waived. We are not inclined to that
view, but the principle is not applicable
to this case where the court is created
and all the members of it are convened
in total disregard and violation of the
statutes upon the subject of its
membership.
McClaughry, 186 U.S. at 68. Given this language,
the construction of the convening orders by the
participants at trial is not controlling. See Mack
supra. The main consideration is whether AB-12
complied with relevant statutes and rules.
The prejudice in this case is clear. Jurisdiction
never attached in this case. AB-12 appoints only five °
members to sit on Petitioner’s court-martial. Two of
16
these members were eliminated through voir dire.
Four members not listed on AB-12 sat on Petitioner's
court-martial panel. Petitioner requested a panel of
officer and enlisted members. R. 8. The court-
martial failed to comply with statutory requirements
governing its creation, quorum, and composition.
These failings are not de minimis. Statutory
requirements must be followed. As this Honorable
Court noted in Runkle:
The trial, finding, and sentence are the
solemn acts of a court organized and
conducted under the authority of and
according to the prescribed forms of
law. It sits to pass upon the most sacred
questions of human rights that are ever
placed on trial in a court of justice;
rights which, in the very nature of
things, can neither be exposed to
danger nor subjected to the
uncontrolled will of any man, but which
must be adjudged according to law.
122 U.S. at 558.
Petitioner has a right to have the “sacred
questions” of his guilt or innocence determined and,
if the former, punishment determined by lawfully
empaneled members. Because his court-martial was
not “organized . .. under the authority of and
according to the prescribed forms of law,” he was not
“adjudged according to law.” /d. His findings and
sentence must, therefore, be set aside.
CONCLUSION
For the foregoing reasons, Petitioner respectfully
requests that this Honorable Court grant his petition
for a writ of certiorari.
Respectfully submitted,
ANTHONY D. ORTIZ
Captain, U.S. Air Force
Counsel of Record
TIFFANY M. WAGNER
Captain, U.S. Air Force
SHANNON A. BENNETT
Major, U.S. Air Force
AF Legal Operations Agency
Appellate Defense Division
112 Luke Ave, Ste 343
Bolling AFB, DC 20332-8000
(202) 767-1562
Counse/ for Petitioner
UNITED STATES, Appellee
¥,
Antonyo T. ADAMS, Airman
U.S. Air Force, Appellant
UNITED STATES
COURT OF APPEALS FOR
THE ARMED FORCES
66 MJ. 255
February 5, 2008, Argued
May 13, 2008, Decided
OPINION BY: EFFRON
OPINION
Chief Judge EFFRON delivered the opinion of the
Court.
A general court-martial composed of officer and
enlisted members convicted Appellant, contrary to
his pleas, of one specification of being absent without
leave and three specifications of dishonorably failing
to maintain sufficient funds for payment of checks,
in violation of Articles 86 and134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 886, 934
Za
(2000). The sentence adjudged by the court-martial
and approved by the convening authority included a
bad-conduct discharge, confinement for 179 days,
and reduction to the lowest enlisted grade. The
United States Air Force Court of Criminal Appeals
affirmed. United States v. Adams, No. ACM 36226,
2007 CCA LEXIS 263, 2007 WL 2050718 (A.F. Ct.
Crim. App. June 20, 2007) (unpublished).
On Appellant’s petition, we granted review of the
following issue:
WHETHER THE COURT-MARTIAL CONVENED
BY SPECIAL ORDER AB-12 HAD PROPER
JURISDICTION WHEN THAT ORDER DID NOT
TRANSFER MEMBERS APPOINTED BY PRIOR
ORDERS AB-01, AB-07, AND AB-09, BUT
MEMBERS NAMED IN THOSE ORDERS
NONETHELESS SAT AS MEMBERS OF
APPELLANT'S COURT-MARTIAL.
For the reasons set forth below, we affirm the
decision of the United States Air Force Court of
Criminal Appeals.
I. COMPOSITION OF THE COURT-MARTIAL
PANEL
1. Initial proceedings
At the outset of his trial, Appellant requested
trial before a court-martial composed of officer and
enlisted members. See Article 25(c)(1), UCMJ, 10
U.S.C. § 825(c)(1) (2000): Rule for Courts-Martial
Ja
(R.C.M.) 903(c)). Following the disposition of
preliminary motions, the trial counsel provided
the standard announcement of the composition of
the court-martial, noting that the court-martial was
convened by Special Order AB-O1, as amended by
Special Order AB-07 and Special Order AB-09. After
accounting for members excused by the convening
authority prior to assembly, the trial counsel
identified the remaining nine members. The trial
counsel administered the oath and the military judge
announced that the court-martial was assembled.
See R.C.M. 807.
2. The panel after voir dire and challenges
Following completion of voir dire and challenges,
the following four members remained on the panel:
Major (MAJ) RDH, Senior Master Sergeant (SMSgt)
BJC, Master Sergeant (MSgt) MAB, and Tech
Sergeant (TSgt) RDG. At that point, the panel
composition fell below the minimum of five members
required for a general court-martial quorum. See
Article 16(1)(A), UCMJ, 10 U.S.C. § 816(1)(A) (2000);
R.C.M. 805(b). The military judge called a recess so
that new members could be detailed to the court-
martial. See R.C.M. 505(c)(2)(B).
3. Proceedings after appointment of new members
The following morning, the military judge
reconvened the court-martial for a session out of the
presence of the members under Article 39(a), UCMd,
10 U.S.C. § 839(a) (2000). He began by providing a
detailed description of the procedural setting. First,
4a
the military judge summarized the reasons for the
changes in the composition of the panel:
Counsel, I just wanted to put on the
record just for continuity purposes, so
that any reviewing authorities, should
that become necessary, would know
what’s going on. After we busted quorum
yesterday, we did, in fact, put the court
in recess. We now have a new appointing
order appointing additional members to
the panel.
Next, the military judge described the procedure
for addressing the voir dire, challenges, and the
reading of charges, both with respect to the new
members and the members previously selected:
What we'll do is go ahead and bring in
those new members. The members that
have already previously been selected,
those four members will not be present;
it will just be the five new members that
have been appointed. We'll go through
the process of reading the _ general
nature of the charges and going through
the voir dire process. As | stated to
counsel earher, cach side will still, in
fact, have a peremptory challenge since
this is a new group of members that did
not go through the original bedding [sic]
process there for the original voir dire.
Da
Finally, the military judge provided the parties with
an opportunity to object to the appointing order or
the procedure that he had outlined:
MJ: With that in mind, does anyone have
an objection to the appointing order or
the way that we are going to handle
that?
CDC: No, Your Honor.
CTC: No, Your Honor.
The military judge then conducted the
preliminary proceedings with the new members, as
he had outlined to the parties. When the new
members were brought into the courtroom, the
military judge summarized the situation for the new
members:
The parties are present and some of the
members are present. Members, just to
give you an idea of what’s going on, we
began this process yesterday, at which
time, we did what was called a busted
quorum, which means we got some
panel members seated, we went under
the below core number which is five;
therefore, we had to have an
appointment of new members which is
you. We're now going through the
process to get you seated through the
voir dire process.
6a
The military judge next described what would
transpire after voir dire:
And once that’s accomplished, we’ll then
call the other four members who have
already been seated, and we'll combine
you into one court, and then we'll bring
you in and begin presentation of the
evidence in this case.
At the request of the military judge, the trial
counsel provided the following description of the
orders convening the court-martial:
This court-martial is convened by Special
Order number AB-01 ... as amended by
Special Order number AB-07,. . . Special
Order number AB-09, . . . and Spccial
Order number AB-12....
Trial counsel then identified the following five
members as present in the courtroom: Lieutenant
Colonel (LTC) RDA, LTC CK, MAJ JWD, 1st
Licutenant (1LT) JLV, 1LT JAD. In accordance with
the procedure outlined by the military judge, the
trial counsel noted that the four members remaining
from the initial proceedings were “absent.”
Referring to his earlier remarks, the military judge
observed that “the court has already been assembled
and, therefore, this is partially reassembly of it at
this time to go through the voir dire process and to
vive you some new instructions.” The military judge
provided the new members with the standard
Ta
preliminary instructions, and proceeded with voir
dire of the new members. At the completion of voir
dire and challenges, the military judge
excused LTC RDA and 1LT JLV.
4. The panel after the second voir dire and
challenges
When the full panel assembled together for the
first time, the military judge announced, “For the
record, we now have both attempts at panels
combined and we now have the seven members that
have been accepted by the court.” Four of the seven
members came from the original set of orders: MAJ
RDH, SMSgt BJC, MSgt MAB, and TSgt RDG. The
three remaining members were added during the
proceedings after the recess: LTC CK, MAJ JWD,
and 1LT JAD.
With seven members, including four enlisted
members, the panel met the requirements of Article
16, UCM, for a general court-martial to consist of at
least five members. The panel also met the
requirements of Article 25, UCMJ, for the panel to
consist of at least one-third enlisted members upon
request of the accused. Subsequently, the trial
proceeded to conclusion in the manner outlined by
the military judge, with no objection by either party.
5. Consideration by the Court of Criminal Appeals
Appellant raised an issue regarding speedy trial
before the Court of Criminal Appeals, but did not
challenge the composition of the court-martial. The
8a
court specified two issues, including the question
now before us concerning the composition of the
panel. Adams, 2007 CCA LEXIS 263, at *2, 2007
WL 2050718, at *1.
The Court of Criminal Appeals observed that
Special Order AB-12 “seems to be a stand-alone
order, convening an entirely new court-martial while
failing to transfer the members named in the
previous set of orders. .. .” /d. at *22, 2007 WL
2050718, at *9. The court also raised the issue of
whether Appellant’s court-martial had _ proper
jurisdiction when the members appointed by the
prior orders sat on Appellant’s court-martial. Id. at
*2, 2007 WL 2050718, at *1. The court noted that
these members would be “interlopers” if they were
not meant to be seated as members of the panel,
creating a fatal jurisdictional defect. /d. at *23 n.5,
2007 WL 2050718, at *9 n.5. Likewise, failing to
transfer the members named in the previous set of
orders to Special Order AB-12 would have denied
Appellant his right to be tried by a panel composed
of at least one-third enlisted members. Id. at *23,
2007 WL 2050718, at *9.
The Court of Criminal Appeals first considered
the language of Special Order AB-12, which stated:
“[a] general court-martial is hereby convened. It may
proceed at Ellsworth AFB, SD to try such persons as
may be properly brought before it. The court will be
constituted as follows ... .” Id. at *9, 2007 WL
2070718, at *4. Special Order AB-12 then listed the
names of five newly detailed members. The order
also stated:
9a
All cases referred to the general court-
martial convened by Special Order AB-
1, this headquarters, dated 8 October
2004, as amended by Special Order AB-
7, this headquarters, dated 24
November 2004, and Special Order AB-
9, this headquarters, dated 8 December
2004, in which the court has_ been
assembled, will be brought to trial
before the court hereby convened.
The Court of Criminal Appeals next considered
the record of trial and the intent of the convening
authority, as reflected by the parties’ actions at trial.
dd. at *23-*26, 2007 WL 2050718, at *9. The court
concluded that Special Order AB-12 was not issued
to constitute an entirely new and distinct court-
martial. Jd at *24, 2007 WL 2050718, at *9.
Instead, the court determined that Special Order
AB-12 was a third amending order, intended to bring
the court-martial up to quorum, while preserving
Appellant’s right to trial by a panel of at least one-
third enlisted members. /d. at *24, 2007 WL
2050718, at *9. The court observed that the
convening authority issued Special Order AB-12
after quorum was broken. The lower court found
that, “there is no doubt that everyone, including the
defense, knew the five members named in Special
Order AB-12 were additional members selected to
bring the court back up to quorum and were not
meant to constitute an entirely new and distinct
court. /d. at *24, 2007 WL 2050718, at *9. Finally,
the cour noted, “[c]learly, there would be no reason
10a
for the convening authority to suddenly start over
with a new court after so much effort had already
gone into reaching the point of adding a third set of
members to this panel.” /d. at *25, 2007 WL
2050718, at *9. The Court of Criminal Appeals
concluded that the errors in the drafting of Special
Order AB-12 were not prejudicial to Appellant. Jd. at
*26-*27, 2007 WL 2050718, at *10. The court
affirmed the findings and sentence. Jd. at *27, 2007
WI, 2050718, at *11.
Il. DISCUSSION
This Court's case law distinguishes between
jurisdictional and administrative errors in the
convening of a court-martial. Jurisdictional error
occurs when a court-martial is not constituted in
accordance with the UCMJ. See United States v.
Colon, 6 M.J. 73, 74 (C.M.A. 1978). Jurisdiction
depends upon a properly convened court, composed
of qualified members chosen by a proper convening
authority, and with charges properly referred.
Article 25, UCMJ; R.C.M. 201(b); R.C.M. 503; R.C.M.
504; R.C.M. 505. A court-martial composed of
members who are barred from participating by
operation of law, or who were never detailed by the
convening authority. is improperly constituted and
the findings must be set aside as invalid. See
McClaughry v. Deming, 186 U.S. 49, 63-65 (1902)
(court-martial composed entirely of Regular Army
officers in trial of a volunteer officer violated the
Articles of War and was illegal): United States v
Harnish, 12 C.M.A. 4438, 31 C.M.R. 29 (1961)
(individual who served on a court-martial without
lla
appointment by the convening authority rendered
the proceedings invalid).
Administrative errors in the drafting of a
convening order are not necessarily fatal to
jurisdiction, and may be tested for prejudice under
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000). See
Colon, 6 M.J. at 74-75 (court-martial conducted
without the presence of four detailed members who
had not been properly relieved was not jurisdictional
error, but was prejudicial). In United States v.
Glover, 15 M.J. 419, 422 (C.M.A. 1983), this Court
found no prejudice to the accused where all parties
believed the accused was at trial before a general
court-martial, but the convening order convened a
special court-martial. We have recognized that
clerical mistakes are not necessarily prejudicial. See
id. at 421; United States v. Gebhart, 34 M.J. 189,
192-93 (C.M.A. 1992).
In the present case, we find no jurisdictional
defect in the composition of Appellant’s court-
martial. None of the seven members’ who
participated in the court-martial was an “interloper.”
Each member was selected by the convening
authority to consider these charges against this
accused. There is no evidence that the convening
authority excused any of the members who sat on
Appellant’s court-martial. See R.C.M. 505(c)(2)(A).
There is also no evidence that the convening
authority withdrew the charges in order to refer
them to a new court-martial, as provided for in
R.C.M. 604. More important, the record reflects that
the five members named in Special Order AB-1i2
12a
were selected to bring the court-martial up to
quorum and were not selected to serve as a
separately constituted court-martial. This purpose
is underscored by the language of Special Order AB-
12, which provided that “[a]ll cases referred to the
general court-martial convened by Special Order AB-
1 ...as amended by Special Order AB-7.. . and
Special Order AB-9 . . . in which the court has been
assembled, will be brought to trial before the court
hereby convened.” In that regard, we note that the
convening authority appointed only officer members
in Special Order AB-12 following proceedings in
which the accused had elected trial before a panel
that included enlisted members. Under these
circumstances, the order served to bring the panel
up to quorum. In short, the record of trial
demonstrates that the errors in drafting Special
Order AB-12 were administrative in nature, and
that the errors did not materially prejudice the
substantial right of the Appellant. See Article 59(a),
UCMJ.
Ill. DECISION
The decision of the United States Air Force Court
of Criminal Appeals is affirmed.
ERDMANN, Judge, with whom RYAN, Judge
joins (dissenting):
The power to convene courts-martial and to detail
members to those courts-martial rests solely in those
commanders that Congress, the President, or the
Secretary concerned empowered to take those
l3a
actions. See Articles 22, 23, 24, 25, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 822, 823, 824,
825 (2000). A convening authority’s actions create
the structural basis of a courts-martial and when the
plain language of the convening authority’s order is
clear, complete, and unambiguous, that order must
be given effect. See United States v. Wilson, 65 M.J.
140, 141 (C.A.A.F. 2007). Because the language of
Special Order (SO) AB-12. clearly and
unambiguously convened a new court-martial to
which none of the previously detailed court members
were re-detailed, and because the composition of that
newly created court-martial fell below a quorum and
lacked enlisted membership as requested by Adams,
the court-martial suffered a structural error which
requires reversal.
There is no dispute as to the sequence and
contents of convening orders in this case. The initial
convening order, SO AB-01, convened a general
court-martial and detailed ten officers to the panel.
That order was properly amended by SO AB-7 which
removed five officers and detailed five enlisted
members. Then, SO AB-9 properly amended SO AB-
01 relieving three members and naming three
additional members. After voir dire only four
members remained and the court-martial fell below
quorum. The military judge recessed the court:
martial and directed trial counsel to “get us a couple
of names or three names there for potential new
members, keeping in mind the numbers of officers
and enlisted for the quoruml).” In response the
convening authority issued SO AB-12 which, rather
than amending SO AB-01, created a new court-
l4a
martial. The issue before the court is whether
Adams was tried before a properly convened court.
“A court-martial is created by a convening order
of the convening authority.” Rule for Courts-Martial
(R.C.M.) 504(a). The convening authority may
change the members by order. R.C.M. 505(a). Before
assembly of the court, the members may be changed
without showing cause. R.C.M. 505(c)(1)(A). New
members may be added after assembly “only when,
as a result of excusals .. . the number of members of
the court-martial is reduced below a quorum, or the
number of enlisted members, when the accused has
made a timely written request for enlisted members,
is reduced below one-third of the total membership.”
R.C.M. 505(c)(2)(B).
Adams’ court-martial had been sworn and
assembled. Consequently, when the membership of
Adams’ original court-martial fell below a quorum as
a result of challenges, new members could have been
added to the court-martial convened by SO AB-01
just as the convening authority had done in SO AB-7
and SO AB-9.
That is not, however, what SO AB-12 does.
Rather than detailing new members to a previously
convened court-martial, SO AB-12 very plainly
“convened” a general court-martial. SO AB-12 has all
the required attributes of an order creating a court-
martial: it designates the type of court-martial and
details members. The order detailed five members to
the general court-martial, the precise number
necessary to constitute a general court-martial. See
15a
Article 16(1)(A), UCMJ, § 10 U.S.C. 816(1)(A) (2000).
This convening order stands in stark contrast to an
order that merely adds members to a previously
convened court-martial. Notably, this record reflects
two prior, proper amending orders detailing new
members to the court convened by SO AB-01. These
amending orders reflect that the convening authority
knew how to add members and support the plain
reading of SO AB-12 that something entirely
different was intended by that order.
There is other language in SO AB-12 that plainly
indicates the creation of a new court-martial. The
order states:
All cases referred to the general court-
martial convened by Special Order AB-1,
this headquarters, dated 8 October 2004, as
amended by Special Order AB-7, this
headquarters, dated 24 November 2004,
and Special Order AB-9, this headquarters,
dated 8 December 2004, in which the court
has been assembled, will be brought to trial
before the court hereby convened.
Facially this language withdraws the charges from
the court-martial convened by SO AB-01 (as
amended) and re-refers them to the court-martial
created by SO AB-12. Cha ges may be withdrawn
from a court-martial for any reason at any time
before findings are announced. R.C.M. 604(a).
Withdrawn charges upon which no evidence has
been introduced at the initial court-martial may be
l6ha
referred to another court-martial unless withdrawal
was for an improper reason. R.C.M. 604(b). In this
instance the apparent reason for withdrawal and re-
referral is to establish a quorum -— a proper reason.
In addition, the withdrawal and re-referral are
consistent with the trial proceedings and the express
need to have a quorum. “[Wlhen the plain language
of the convening authority’s action for order] is
facially complete and unambiguous, its meaning
must be given effect.” Wi/son, 65 M.J. at 141. Put
simply, an unambiguous convening order means
precisely what it says.
United States v. Mack, 58 M.J. 413 (C.A.A.F.
2003), reflects a three-step process for reviewing
convening orders and determining whether members
were properly detailed to a given court-martial:
[1] When the convening orders and the
record make it clear that an individual
who served on a court-martial panel was
never detailed to do so, we have held
that the court-martial was improperly
constituted and the findings must be sct
aside. United States v. Harnish, 12
C.M.A. 443, 31 C.M.R. 29 (1961). [2]
When the record reflects an ambiguity as
to whether an individual was detailed to
serve at a particular court-martial, we
look to the intent of the convening
authority with respect to service of that
member on that court-martial panel.
United States v. Padilla, 1 C.M.A. 608, 5
C.M.R. 31, (C.M.A. 1952). [3] When there
17a
is an ambiguity but no evidence that the
convening authority’s intent was to the
contrary, “the construction of the
convening orders by the participants of
[the] trial is controlling.” United States
v. Gebhart, 34 M.J. 189, 193 (C.M.A.
1992).
Id. at 416. Applying a similar analysis here confirms
that this court-martial was defective. In Adams’
case, there is no ambiguity. SO AB-12 is perfectly
clear with respect to which members were detailed
to serve on the court-martial created by that order.
Those individuals who previously remained from SO
AB-O1, as amended by SO AB-7 and SO AB-9, were
never detailed to the court-martial convened by SO
AB-12. When the membership of the court-martial
created by SO AB-12 fell below five properly detailed
members and when persons not detailed to that
court sat in judgment of Adams, this court-martial
was not properly constituted and _ reversal is
required.
The majcrity places great weight upon United
States v. Glover, 15 M.J. 419 (C.M.A. 1983), to affirm
this case on the basis of administrative error in the
preparation of court-martial convening orders. In my
view, to the extent that G/over means that clear and
unambiguous language in a convening order can be
ignored, that case should be overruled. As applied in
this case, Glover elevates erroneous interpretations
by individuals other than the convening authority
over the clear expression of the convening authority.
As a result, it condones inattention and sloppy
18a
administration in military justice. There is nothing
in the language of SO AB-12 that is improper,
unlawful or ambiguous. Facially, SO AB-12
addressed and rectified the lack of a quorum. There
is no justification for looking beyond the face of SO
AB-12 itself, and there is no reason not to give the
words of the convening authority their ordinary and
plain meaning. This court-martial lacked a properly
detailed quorum and contained interlopers. I
therefore dissent.
19a
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES
Vv.
Airman ANTONYO T. ADAMS
United States Air Force
ACM 36226
20 June 2007, Decided
COUNSEL: For Appellant: Colonel Nikki A. Hall,
Lieutenant Colonel Mark R. Strickland, and Captain
Anthony D. Ortiz.
For the United States: Colonel Gerald R. Bruce,
Colonel Gary F. Spencer, Lieutenant Colonel Robert
V. Combs, Major Matthew S. Ward, Major Michelle
M. McCluer, Major Amy E. Hutchens, Captain
Donna S. Rueppell, and Captain Daniel J. Breen.
JUDGES: Before BROWN, FRANCIS and SOYBEL
Appellate Military Judges. Chief Judge BROWN
participated in this decision prior to his retirement.
OPINION BY: SOYBEL
OPINION
OPINION OF THE COURT
SOYBEL, Judge
20a
The appellant pled not guilty to all charges and
specifications. Appellant was convicted of being
absent without leave under Article 86, UCMJ, 10
U.S.C. § 886, and of three specifications of
dishonorably failing to maintain sufficient funds for
payment of checks under Article 134, UCMJ, 10
U.S.C. § 934. He was found not guilty of rape under
Article 120, UCMJ, 10 U.S.C. § 920, and of wrongful
use of marijuana under Article 112a, UCMJ, 10
U.S.C. § 912a. His adjudged and approved sentence
consisted of a bad-conduct discharge, confinement
for 179 days, and reduction to E-1.
The appellant asserts one error for our review:
Whether the military judge erred in denying the
appellant's motion to dismiss all charges and
specifications for denial of his right to speedy trial
under Article 10, UCMJ, 10 U.S.C. § 810, and the
Fifth and Sixth Amendments to the United States
Constitution. After reviewing the entire record, this
Court specified two issues: (1) Whether Master
Sergeant (MSgt) R, appointed by Special Order AB-
07, was properly excused from the court-martial and
if he was not, whether the court was properly
convened; (2) Whether the court-martial convened by
Special Order AB-12 had proper jurisdiction when
that order did not transfer members appointed by
prior orders AB-01, AB-07, and AB-09, but members
named in those orders nonetheless sat as members
of the appellant’s court-martial. Finding no error
prejudicial to the appellant, we affirm.
2la
Background Regarding the Speedy Trial Issue
The military judge made extensive and detailed
findings of fact that we accept under the clearly
erroneous standard adopted by our superior court in
United States v. Doty. 51 M.J. 464, 466 (C.A.A.F.
1999) (quoting United States v. Taylor, 487 U.S. 326,
337 (1988)).
On 5 March 2004, the appellant was notified
that because of a pattern of minor disciplinary
infractions, he had been selected for involuntary
separation with an honorable discharge before the
expiration of his normal term of service under the
Air Force, Force-Shaping Program. This was known
as a “rollback” action, and his date of separation was
set for 5 June 2004.
Just four days after his notification, the Air
Force Office of Special Investigations (OSI) at
Ellsworth Air Force Base (AFB), South Dakota,
became aware of Airman (Amn) F’s rape allegation
against the appellant. According to Amn F, the rape
occurred almost a year before she reported it to
authorities. The OSI immediately opened an
investigation and interviewed the appellant and
Amn F that same day. The accused waived his right
to remain silent and provided a statement to the
OSI.
Over the course of the next few days, the OSI
conducted an iivestigation that included a records
review, a pretext phone call to the appellant, witness
interviews, and attempts to locate other pertinent
2am
witnesses. Because of the late reporting of the
allegation, the OSI conducted neither a rape protocol
examination nor crime scene investigation. The trial
court found “for all practical purposes, that the OSI
completed [its] investigation on or about 11 March
[20]04, within two days of the date [it] opened the
investigation.”
The military judge also found that “for some
inexplicable reasons, the [report of investigation]
was not rendered [to the legal office] until 13 May
120104, some two months later.” From 13 May 2004
to 5 August 2004, the legal office conducted one
interview with Amn F to ascertain she was
interested in pursuing the case. Other than very
limited discussions with the trial defense counsel
about scheduling 2 hearing pursuant to Article 32,
UCMJ, 10 U.S.C. § 832, the case essentially sat idle
during this period.
However, during this’ period of apparent
government inactivity, things were happening with
the appellant. He received a no contact order
regarding Amn F and was reassigned to a new work
section to avoid working in the same duty section
with her. Starting on 1 August 2004 and continuing
for several pay pcriods, the appellant received
paychecks of less than $50.00 because the
government was recouping excess money it had paid
him during the preceding four months. On 1 June
2004, the appellant was placed on administrative
hold, which required legal office coordination before
he was allowed to go on temporary duty, take leave,
or be reassigned to another base. Also, on 1 June
23a
2004, the appellant’s rollback action was cancelled
and his original 21 October 2006 separation date
was reestablished.
Between 9 March 2004 and 29 November 2004,
the appellant expressed anxiety and frustration over
the length of time his case was taking to move
forward. Through his own. observations, the
appellant’s first sergeant determined the appellant’s
stress level was high enough .0 warrant a visit to the
counselors at Life Skills! office. This visit was not
command directed, but rather borne out of the first
sergeant’s concern for the appellant’s weli being.
By 31 July 2004, almost five months after the
OSI completed its investigation, the appellant’s area
defense counsel (ADC) was reassigned without an
agreement in place on a date to conduct an
investigation pursuant to Article 32, UCMJ. The
military judge found that the failure to initiate a
hearing pursuant to Article 32, UCMJ, was due to
inaction on the part of the government.
On 2 August 2004, the appellant failed to report
for duty. Three days later he was located on an
Indian Reservation where he had traveled with a
member of the local tribe. The appellant was held in
civilian custody until he was returned to Ellsworth
AFB, South Dakota, on 6 August 2004 and placed in
pretrial confinement. The pretrial confinement
hearing was held on 9 August 2004 and, due to a gap
in ADC coverage at Ellsworth AFB, the ADC from
‘Life Skills” refers to the mental health counseling services
offered by the Air Force.
24a
Mountain Home AFB, Idaho represented the
appellant at that hearing, by phone.
A hearing pursuant to Article 32, UCMJ, was
initially scheduled for 9 September 2004 but, at the
government's request, was delayed for two weeks
due to the discovery of the appellant’s alleged bad
checks. The government was also aware of a positive
urinalysis result for marijuana from a_ sample
collected upon the appellant’s return to military
control on 6 August 2004. The appellant’s ADC did
not object te the date of the Article 32, UCM,
investigation but did submit a request for a speedy
trial on 10 September 2004. Charges were preferred
on 22 September 2004. The Article 32, UCM,
hearing was held on 23 September 2004, and the
report was completed on 28 September 2004. The
charges were served on the appellant on 13 October
2004. After a docketing conference, trial was set for
30 November 2004. The military judge excluded the
period between 8 October and 30 November 2004
from the calculation of days used to determine
compliance with Rule for Court Martial (R.C.M.)
707.
Meanwhile, on 7 October 2004, the defense
requested an expert consultant in the area of
forensic psychology. Due to avoidable problems on
the government's side, an expert was not appointed
and engaged with the defense until the week of 6-10
December 2004. Because of this delay, trial on the
merits did not begin until 13 December 2004,
although the appellant was arraigned at a session
held on 29 November 2004.
Background Regarding the Specified Issues
The court was convened through the
promulgation of four special orders. The first order,
AB-01, issued on 8 October 2004, appointed ten
officers to comprise the court-martial. On 24
November 2004, Special Order AB-07 relieved five of
the original officers and appointed five enlisted
members. Two of these enlisted members were MSegt
R and MSgt B. Two weeks later, on 8 December
2004, Special Order AB-O9 relieved MSgt B and two
others, a major and a senior master sergeant, but
not MSgt R. Additionally, Special Order AB-09
appointed an additional officer and two enlisted
members. At trial, the first time the members were
brought into the court, the trial counsel announced
ten names; MSgt B, who wa’ relieved in AB-09, was
one of the names the trial counsel announced as
being present. MSgt R, who was not relieved in any
of the special orders, was not announced as being
present and, in fact, was not present. After the trial
counsel announced the names, the following
exchange occurred between the military judge and
trial counsel:
MJ: Captain, is there a Sergeant [B]
here?
TC: Your Honor, Master Sergeant [B] is
absent.
MJ: And he’s absent because he was
relieved. Is that correct?
26a
TC: Master Sergeant [RI], I believe, was
excused, Your Honor, as was Master
Sergeant
[B}.
MJ: Now counsel, you've thoroughly
confused me. How many members are.
supposed to be here now?
TC: Nine, Your Honor.
MJ: And everyone like [B], all of them
have properly been relieved by the
convening authority. Is that correct?
TC: Yes, your honor
After this exchange took place the members were
sworn and the military judge announced the court
was assembled. MSgt B and MSgt R were not
present. There was no objection from the trial
defense counsel regarding the composition of the
court.
During voir dire, the number of panel members
fell to four; one officer and three enlisted members.
At that point, Special Order AB-12, dated 15
December 2004, was promulgated. Unlike the two
previous orders, which relieved certain members and
detailed new members to the “general court-martial
convened by Special Order AB-01,” AB-12
purportedly convened an entirely new court-martial.
It read: “A general court-martial is hereby convened.
27a
It may proceed at Ellsworth AFB, to try such
persons as may be properly brought before it. The
court will be constituted as follows .. .” The order
then listed the names of five newly detailed
members before going on to read:
All cases referred to the general court-
martial convened by Special Order AB-1,
this headquarters, dated 8 October 2004,
as amended by Special Order AB-7, this
headquarters, dated 24 November 2004,
and Special Order AB°9, this
headquarters, dated 8 December 2004, in
which the court has been assembled, will
be brought to trial before the court
hereby convened.
Despite the plain language of Special Order AB-
12, it was clear that the trial participants considered
the members named in that special order to be
additional members to the partially assembled
quorum rather than a separately constituted court.
After quorum was broken and Special Order AB-12
was received from the convening authority, the
military judge said, “We now have a new appointing
order appointing new members to the panel.” He
went on to say they would voir dire the five new
members outside the presence of the members who
had “already previously been selected.” After the
newly named members underwent voir dire, they
joined the four members remaining from the
previous orders to make up the appellant's court-
martial panel.
28a
Speedy Trial
We review speedy trial issues de novo. United
States v. Proctor, 58 M.J. 792, 704 (A.F. Ct. Crim.
App. 2003); United States v. Cooper, 58 M.J. 54, 57
(C.A.A.F. 2003); Doty, 51 M.J. at 465. While doing so
we give substantial deference to the trial judge’s
findings of fact and will not overturn them unless
they are clearly erroneous. United States v. Mizgala,
61 M.J. 122, 127 (C.A.F.F. 2005); Proctor, 58 M.J. at
795.
Several authorities give rise to an accused’s right
to a speedy trial. This right has been recognized
under the Fifth and Sixth Amendments to the U.S.
Constitution; Article 10, UCMJ: Rule for Courts-
Martial (R.C.M.) 707; and case law. United States v.
Vogan, 35 M.J. 32, 33 (C.M.A. 1992). Appellant has
raised the issue under three of these authorities.
Fifth Amendment
The Fifth Amendment’s Due Process Clause has
been recognized by the Supreme Court as protecting
an accused from egregious pretrial delays caused by
the government. United States v. Lovasco, 431 U.S.
783 (1977); Vogan, 35 M.J. at 34. In Lovasco, a trial
for mail fraud and weapons charges, more than
eighteen months elapsed between the commission of
the offenses and indictment. Lovasco, 431 U.S. at
* The appellant has not raised the 120-day rule under R.C.M.
707, nor do we perceive a violation of that rule.
29a
784. During that time, two witnesses the appellant
claimed were material to his defense died. /d. at 785.
Despite the apparent setback for the defense in
Lovasco, this is an area of the law where the
government is given much latitude in deciding the
speed at which it prosecutes a case. /d. at 795. In
denying the appellant’s Fifth Amendment challenge
to the charges, the Supreme Court held that judges,
in defining due process, are not allowed to substitute
their own “personal and private notions of fairness”
for the “prosecutor’s judgment as to when to seek an
indictment.” Jd. at 790 (quoting Rochin v. California,
342 U.S. 165, 170 (1952)). The Court looked at the
case as a whole and decided that the extent of
prejudice to the appellant’s case, notwithstanding
his assertions about the materiality of the two
witnesses, was not very severe. /d. at 796. The Court
also saw no bad faith on the part of the government
and refused to craft a rule that required the
government to proceed to‘trial as soon as it had
enough evidence to establish probable cause. /d. at
796-97.
In Lovasco, the Court discussed many valid
reasons why the government might wait before
formally bringing charges even though it possessed
enough information to establish probable cause. /d
at 797 n.19. Several of these reasons would benefit
the accused. /d. Finally, the Court recognized that
statutes of limitation provide the “primary
guarantee against bringing overly stale criminal
charges.” /d. at 789 (citing United States v. Marion,
404 U.S. 307, 322 (1971)). In short, the Court said
30a
that the government is free to exercise its judgment
in deciding when to bring charges against an
individual, and, unless bad faith or substantial
prejudice to the defense’s case is evident, the
government’s judgment will not be disturbed. /d. at
783. See also United States v. Reed, 41 M.J. 449
(C.A.A.F. 1995), which instructs that not only is the
length of the delay important, but the reason for the
delay must also be examined in a Fifth Amendment
speedy trial test. The appellant has the burden of
proof regarding these two prongs. Mere speculation
or conjecture will not suffice. /d. at 452.
In this case, ene of the appellant's chief
complaints focuses on the initial four-month delay,
during which the government only accomplished a
week or two of actual work. Even though the
military judge found this delay to be “egregious,” he
did not find it violated the Fifth Amendment. We
agree. While the government could have, and should
have, moved at a quicker pace, there was no
evidence it stalled the investigative progress to gain
some tactical advantage over the appellant. Nor did
the delay “impair the ability to mount a defense.”
Vogan, 35 M.J. at 34 (citing Lovasco, 431 U.S. at 795
n.17).
In fact, some of the prejudices the appellant
claims he suffered because of the delay were things
totally within his control. We will not assign blame
to the government because the appellant wrote bad
checks and went AWOL between the time the OSI
first opened its case and the time the government
formally charged him. While we agree that 132 days
3la
in pretrial confinement can be prejudicial in some
situations, that fact alone, without evidence of harsh
or oppressive conditions, or some actual prejudice to
the appellant’s case, does not constitute a violation of
the appellant’s “substantial rights.” Mizga/a, 61 M.J.
at 129.3
Sixth Amendment
Application of the Sixth Amendment speedy trial
right is triggered at indictment or restrained by
arrest and detention. Lovasco, 431 U.S. at 788 (citing
Marion, 404 U.S. 307). The military equivalent to
indictment is the bringing of a formal charge. Vogan,
35 M.J. at 33; United States v. Nichols, 42 M.J. 715,
719 (A.F. Ct. Crim. App. 1995). Delays occurring
before preferral are irrelevant for Sixth Amendment
speedy trial purposes. Lavasco, 431 U.S. at 788. The
Supreme Court established the test for Sixth
Amendment speedy trial violations in the case of
Barker v. Wingo, 407 U.S. 514 (1972). In applying
this four-part test, we look at the length of the delay
in bringing the appellant to trial, the reasons for the
delay, whether the appellant asserted his right to a
speedy trial prior to trial, and the extent of any
prejudice to the appellant. Barker, 407 U.S. at 530.
See also United States v. Becker, 53 M.J. 229, 233
(C.A.A.F 2000); Proctor, 58 M.J. at 797-98.
Here, just over two months elapsed hetween
preferral and the appellant’s arraignment, which
occurred on 29 November 2004 at the first session of
’ While Mizgala addresses concerns related to Article 10,
UCMJ, the pretrial confinement analysis is equally applicable
for a discussion of the Fifth Amendment.
32a
the trial. Then, because of problems obtaining a
defense requested expert, the trial did not begin in
earnest until 13 December 2004, two weeks and a
day after arraignment and just less than three
months after preferral. We do not find this delay to
be excessive or prejudicial to the appellant.
For the second prong of the Sarker test, a
combination of factors caused the delay: scheduling
the Article 32, UCMJ, hearing while accommodating
the new ADC’s’ upcoming temporary’ duty
assignment; discovering additional charges;
difficulty finding a mutually agreeable trial date;
and the government's month-plus attempt to provide
the appellant with a _ suitable expert witness.
Although the government’s attempt to find the
requested expert was poorly executed and added a
month to the pretrial delay, there was no indication
the government deliberately tried to delay the trial
to gain an advantage over the appellant. Negligence
or even overcrowded courts were noted by the
Supreme Court as among more “neutral” reasons
that are weighted less heavily against the
government when deciding this issue. Barker, 407
U.S. at 531. The month delay in finding an expert for
the defense was caused by a conflict of interest
between the first proposed expert and his supervisor,
but there certainly was no bad faith shown on the
government’s part in making the initial selection. In
that sense, this is a more neutral reason for the
delay.
For the third prong of the test, the appellant
asserted a demand for a speedy trial on 10
33a
September 2004. However, three weeks later he
made his request for an expert consultant in the
area of forensic psychology. Even though the
military judge was right in criticizing the
government for taking more than 30 days to find an
expert for the appellant, we must expect some delay
in getting to trial while this request was being
worked.
Finally, other than spending 134 days in pretrial
confinement, the appellant has shown no prejudice
to his ability to defend himself at trial because of the
delay.4 Under Barker, impairment of the defendant’s
ability to defend himsclf is the most important harm
the right to a speedy trial seeks to prevent. Jd. In
that case, trial was delayed five years but with no
prejudice to the appellant’s ability to defend himself.
In this case, ne evidence or witnesses helpful to the
appellant were lost, nor did the appellant identify
any other prejudice to his ability to defend himself.
Applying the four-part test enunciated by the
Supreme Court in Sarker, there is not sufficient
reason to warrant dismissal of all charges and
specifications under the Sixth Amendment Speedy
Trial Clause, despite the government’s sometimes
sluggish pace in prosecuting this case. Considering
the length of the delay, the reasons for it, the timing
of the appellant’s demand for a speedy trial, and the
fact that the delay did not prejudice the appellant's
ability to defend himself, we find the appellant’s
* The appellant in Barker spent ten months in jail before
posting a $5,000 bond to obtain his release. Barker, 407 U.S. at
517
34a
rights under the Sixth Amendment were not
violated.
Article 10, UCMJ
Article 10, UCM, is triggered when a service
member is placed under pretrial arrest or in
confinement. From that point on, the government is
compelled to take “immediate steps” to either “try
him or to dismiss the charges and release him.” “The
test for compliance with the requirements of Article
10 |UCMJ] is whether the government acted with
‘reasonable diligence.” Proctor, 58 M.J. at 798 (citing
United States v. Birge, 52 M.J. 209, 211 (C.A.A.F.
1999)). See also United States v. Benavides, 57 M.J.
550, 551 (A.F. Ct. Crim. App. 2002): United States v.
Kossman, 38 M.J. 258, 261 (C.M.A. 1993). Our
superior court has often said it does “not demand
‘constant motion [from the government], but
reasonable diligence in bringing the charges to
trial.” United States v. Cossio, 64 M.J. 254, 256
(C.A.A.F 2007) (quoting Mizgala, 61 M.J. at 127):
United States v. Tibbs, 35 C.M.R. 322, 325 (C.M.A.
1965). Each of these prior cases maintains that
while Article 10, UCMJ, provides greater rights than
does the Speedy Trial Clause of the Sixth
Amendment, the four-part test set out in Barkeris a
proper analytical tool for deciding Article 10, UCM,
issues.
In this case, even though the OSI opened an
investigation against appellant in March of 2004, the
protections of Article 10, UCMJ. were not triggered
until the appellant was apprehended and placed in
35a
pretrial confinement on 6 August 2004.
Approximately one week later, the legal office was
first notified of the possible financial misconduct
committed by appellant. It also learned of his
positive urinalysis results.
Due to the temporary dutv schedule of the
appellant's defense counsel, an_ inv2stigation
pursuant to Article 32, UCMJd, could not be
scheduled until 9 September 2004. In the week
before the scheculed investigation, the government
received evidence concerning the bad check offenses
for the first time and asked for a postponement of
the investigation until 23 September 2004. The
report from the investigation was completed within
five days and forwarded to the convening authority.
Charges were referred to trial within ten days of the
report's receipt by the convening authority. The
government worked the case continuously
throughout October 2004, conducting witness
interviews, issuing subpoenas and consulting with
personnel at the Air Force drug testing laboratory.
Because the parties could not agree on a trial date, a
military judge set trial for 30 November 2004. This
date took into account proposed dates from each side
as well as the availability of a government expert
witness.
During the month of October 2004, the
government also tried to find a suitable expert
witness to fulfill a request by the defense. It took
almost 30 days to find one, though it probably should
have taken less than a week. The military judge
36a
placed the blame for the loss of this time cn the
government.
During the month vof November 2004, the
government continued with its case preparation and
responded to discovery requests. The appellant was
arraigned on 29 November 2004, and trial on the
merits began 14 December 2004. Tle defense’s
expert witness needed a week of that intervening
time to work with the defense and prepare for trial.
In all, the appellant spent 134 days in pretrial
confinement.
We agree with the military judge that during this
time the government exercised due diligence. Even
the government’s excessive time obtaining an expert
for the defense does not change the overall
assessment of government conduct during this
period. Given the other pretrial work that was still
ongoing during this delay and the fact that the trial
date, which had already been set for 30 November
2004, precluded “any likely earlier action,” we agree
with the military judge that the delay should “not
change the court’s assessment of [the government’s]
conduct as a whole.”
Composition of the Court-Martial Pane/
Court Member MSet R's absence
Guvernment appellate counsel argues that MSegt
R’s excusal was properly announced on the record in
conformity with R.C.M. 505(b), so the fact that the
convening authority did not relieve him in any of the
37a
four special orders promulgated for this court is of no
consequence. Indeed, R.C.M. 505(b) does say that
“[aln order changing the members of the court-
martial, except one which excuses members without
replacement, shall be reduced to writing before
authentication of the record of trial.” Government
appellate counsel’s position relies on the trial
counsel's exchange with the military judge noted
above.
The problem with this position is that we have
absolutely no idea whether MSgt R was excused
“without replacement.” Inherent in the government’s
position is the underlying rationale that since MSgt
R’s excusal was not reduced to writing, it had to be
“without replacement.” Trial counsel did not say this
was the case when he announced MSgt R’s excusal
in court, and, given the hazy nature of the exchange
between trial counsel and the military judge, we are
not confident MSgt R’s excusal did not need to be
reduced to writing. Besides, Air Force Instruction
(AFD 51-201, Administration of Military Justice, §
5.8.1 (26 Nov 2003), tells practitioners to “[a]void
oral amendments, unless absolutely necessary, and
ensure they are confirmed by written orders.” This
instruction was not followed here. Of course, this
entire issue could easily have been resolved with an
affidavit from the convening authority or staff judge
advocate stating that MSgt R was in fact excused.
None was provided.
38a
Failure to transfer members
Another problem with the convening orders in
this case is that Special Order AB-12 seems to be a
stand-alone order, convening an entirely new court-
martial while failing to transfer the members named
in the previous orders to the new panel.
Intentionally not having those members named in
the previous sets of orders transferred to Special
Order AB-12, but nonetheless having them sit on the
panel hearing the appellant’s case would make them
“interlopers” on the court.® Intentionally failing to
transfer them to Special Order AB-12 would also
have denied the appellant his right to be tried by a
panel composed of at least one-third enlisted
members as he requested. Both of these situations
would have been fatal defects.
It is easy to see from the record what was
intended during member selection and the special
order creation process of this court. AFI 51-201, §
5.8.1 provides: “[glenerally, issue no more than two
amendments to the original order. If it is necessary
to further amend the convening order, publish a new
order convening the court-martial and transfer all
cases in which the court has not yet been assembled
to the new order.” Since Special Order AB-12 would
have been the third amendment, the legal office
apparently tried to comply with AFI 51-201 by
* If the four previously selected members were not meant to be
seated as members of the panel, they would havebeen deemed
“interlopers” creating a fatal jurisdictional defect for this court.
United States v. Peden, 52 M.J. 622, 624 (Army Ct. Crim. App.
1999).
39a
publishing a new order. In doing so, it neglected to
name the previously selected members, making it
appear they were no longer detailed to the court.
However, there is no doubt everyone, including the
defense, knew the five members named in Special
Order AB-12 were additional members selected to
bring the court back up to quorum and were not
meant to constitute an entirely new and distinct
court.
This case is similar to United States v. Gebhart,
not only in the number of errors associated with
creating the special orders, but also in the type of
errors. United Siaies v. Gebhart, 34 M.J. 189
(C.M.A. 1992). There, one enlisted member who was
detailed and relieved in the same order sat as a
member of the panel while another member who was
detailed to the court failed to appear with no
explanation, much like our MSgt R. Also, an
amending order in Gebdart referred back to a court-
martial convening order that was not associated
with that case. Finally, the amending order itself
was signed by the wrong person. Our superior court
was displeased enough with these errors to refer to
the administration of the court-martial orders in
Gebhart as “slipshod.” Yet despite all of the case’s
problems, the Court did not find a jurisdictional
error. /d. at 192.
A court-martial convening order is merely an
“expression of the intent of the convening authority. .
.. lilf the document does not accurately reflect the
convening authority's intent, it is the fault of the
document's author, not the convening authority.”
40a
United States v. Glover, 15 M.J. 419, 421 (C.M.A.
1983). Glover and Gebhart both instruct that we
should look to the conduct of the parties involved in
the court-martial to see what their understanding
was of the convening authority’s intent. Jd.; GebAart,
34 M.J. at 189. Here there is no question all parties
considered Special Order AB-12 a third amending
order and not an order constituting a new court.
Clearly, there would be no reason for the convening
authority to suddenly start over with a new court
after so much effort had already gone into reaching
the point of adding a third set of members to this
panel. Plainly, the convening authority’s intent was
to appoint new members to the partially formed
court in order to bring it up to quorum, while
preserving the appellant’s right to trial by a panel of
at least one-third enlisted members. Finally, the
military judge asked if there was any objection to the
orders or the way they were going to handle the
addition of the new members. There was none by
either side.
Regarding the missing MSgt R, his absence does
not create a jurisdictional flaw requiring reversal. In
United States v. Cook, our superior court looked at a
case where the staff judge advocate, who was
delegated authority to excuse members from a court-
martial, exceeded his authority and excused more
than one-third of the detailed members. United
States v. Cook, 48 M.J. 434 (C.A.A.F. 1998). Thus,
like in the instant case, at least one member who
was absent should have been present and sitting on
the panel. In Cook as in this case, the court checked
if there was an objection by the defense, and there
4la
was none. /d. at 436. More importantly, the Court
found the error caused no prejudice to the appellant.
Like in Cook, not only was there was no objection to
the court’s composition in this case, there was aiso
no argument put forth that the appellant was
prejudiced by the empanelling process irregularities,
and there is nothing in the record to suggest any
prejudice occurred. Jd. In fact, the military judge in
the case now under review very liberally granted the
appellant’s challenges for cause, and we see no
realistic possibility that the errors that did occur
prejudiced the appellant.
Finally, in Gebhart the Court looked to see if, in
the end, the appellant still received a fair trial.
Gebhart, 34 M.J. at 193. We apply the same
‘standard here. Despite the administrative errors
that occurred in this case, we find the appellant was
not prejudiced by these mistakes and received a fair
trial. However, we advise military legal practitioners
that a clear situational awareness regarding the
status of court members and a strict attention to
detail regarding the convening orders’ and
amendments are basic proficiencies that we expect
even the most inexperienced counsel to demonstrate.
42a
Conclusion
The approved findings and sentence are correct in
law and fact, and no error prejudicial to the
substantial rights of the appellant occurred. Article
66(c), UCMJ, 10 U.S.C. § 866(c); United States v.
Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly,
the approved findings and sentence are
AFFIRMED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.