654 F.3d 637 (6th Cir. 2011), 09-6108, United States v. Green

Docket Nº:09-6108, 09-6123.
Citation:654 F.3d 637
Opinion Judge:BOYCE F. MARTIN, JR., Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven D. GREEN, Defendant-Appellant.
Attorney:Scott T. Wendelsdorf, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, for Appellant. Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee. Scott T. Wendelsdorf, Frank W. Heft, Jr., Patrick J. Bouldin, Western Kentucky Federal Community De...
Judge Panel:Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge. [*] MARTIN, J., delivered the opinion of the court, in which STRANCH, J., joined. THAPAR, D.J. (p. 653-54), delivered a separate concurring opinion.
Case Date:August 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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654 F.3d 637 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven D. GREEN, Defendant-Appellant.

Nos. 09-6108, 09-6123.

United States Court of Appeals, Sixth Circuit.

August 16, 2011

Argued: Jan. 21, 2011.

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ARGUED:

Scott T. Wendelsdorf, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, for Appellant.

Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Scott T. Wendelsdorf, Frank W. Heft, Jr., Patrick J. Bouldin, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, Darren C. Wolff, Louisville, Kentucky, for Appellant.

Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee.

Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge. [*]

MARTIN, J., delivered the opinion of the court, in which STRANCH, J., joined. THAPAR, D.J. (p. 653-54), delivered a separate concurring opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Steven D. Green was convicted and sentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an infantryman in the United States Army. Before senior Army officials became aware that Green and three fellow servicemembers were involved in these crimes, Green was discharged due to a personality disorder. When officials discovered Green's involvement in the crimes, his three coconspirators were still on active duty in the Army and thus subject to the Uniform Code of

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Military Justice.1 They were tried by courts-martial and each sentenced to between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army had no authority to court-martial Green because he had already been discharged. Thus, civilian prosecutors charged Green under the Military Extraterritorial Jurisdiction Act, 2 which extends federal criminal jurisdiction to persons who commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction. A federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court sentenced him to five consecutive life sentences. Green claims that the district court lacked jurisdiction to try him because he was never validly discharged from the Army and thus never ceased to be subject to military law as required by MEJA. Furthermore, he claims that MEJA is unconstitutional because it violates the separation-of-powers principle and the nondelegation doctrine, equal protection, and due process. We find that these arguments fail and thus AFFIRM the decision of the district court.

I. BACKGROUND

On February 16, 2005, Green enlisted in the United States Army for a period of four years and nineteen weeks. After completing basic training, Green was assigned as an infantryman to Company B, First Battallion, 502nd Infantry Regiment of the 101st Airborne (Air Assault), stationed at Fort Campbell, Kentucky. On September 24, with a scant six months of training, Green was deployed to Iraq, where he was assigned in and around Mahmoudiyah, Iraq, just south of Baghdad. The events that precipitated Green's federal prosecution occurred while he was stationed in Iraq with the 101st.

On the afternoon of March 12, 2006, Green, and fellow members of his unit, Paul Edward Cortez, James Paul Barker, Jesse Von-Hess Spielman, and Bryan Lee Howard, were playing cards and drinking whiskey, in violation of Army General Order 1, at an Army traffic checkpoint known as TCP-2, when Green stated that he wanted to kill some Iraqi civilians because of the deaths of several fellow infantrymen. After Green persisted, Barker eventually agreed to go along with Green's plan, and he told Green that he knew a nearby house where an Iraqi man and three females lived. Barker also suggested that they have sex with one of those females. Green and Barker persuaded Cortez and Spielman to accompany them.

Before leaving, Barker and Cortez changed into black clothing and covered their heads with black ski masks; Green disguised himself by wrapping a brown Army-issued undershirt across his face. As they departed, Green carried a shotgun; the others carried either an M-14 or an M-4 military issued rifle. Howard remained at TCP-2 and was instructed to alert the others with an ICOM, a walkie-talkie-like device, if he saw any Army personnel approaching TCP-2. The group left TCP-2 through a gap in the wire fence surrounding it and headed into a field, which led to a chain-link fence some 400 meters away. The group cut a hole in the fence and passed through to the other side. Once there, Green and his cohorts ran to the house Barker had selected. Green and Spielman approached a man, Kassem Hamza Rachid Al-Janabi, and his six-year-old daughter, Hadeel Kassem Hamza Al-Janabi, who were standing outside,

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and forced them inside. Fakhriya Taha Mohsine Al-Janabi, Kassem's wife, was present inside, along with fourteen-year-old Abeer Kassem Hamza Al-Janabi. Green and Spielman then forced Kassem, Fakhriya, and Hadeel into a bedroom. Spielman closed the door to that room and stood outside, leaving Green inside the room. Meanwhile, Cortez and Barker pulled Abeer into the living room. Cortez pushed her to the ground, pulled off some of her clothes, including her pantyhose, and pushed her dress up above her waist. Cortez and Barker then took turns raping her while forcibly restraining her. During the rape, a flurry of gunshots went off inside the bedroom. Responding to Spielman's knocking, Green opened the door and told Spielman that he was okay. Spielman and Green then entered the living room. Green placed an AK-47 rifle that he had brought with him from the bedroom in the corner of the living room, and announced that everyone else was dead and that he had killed them. Green, who at that point was " wigging out, acting all irate, breathing heavy, and pacing a little," began sexually assaulting Abeer while Cortez held her arms down. When Green finished assaulting Abeer, he retrieved the AK-47 rifle, covered Abeer's head with a pillow, and shot her several times in the face with the rifle. A member of the group then suggested that they burn Abeer's body, so Barker poured kerosene from a lamp he had found onto Abeer's body; someone then lit her body on fire. The group then exited the house after Green stated that he had opened a propane-tank valve in the house in order to set off an explosion. The group returned to TCP-2 the same way they had come. When they arrived, some of them removed their clothing and placed it in an exterior burn pit used for refuse. Cortez ordered Spielman to dispose of the AK-47 rifle, which Green had brought back with him; Spielman took the rifle and threw it into the canal across from TCP-2. Green was later overheard describing the events of the day as " awesome."

Later that afternoon, Iraqi civilians reported to TCP-1, another nearby traffic checkpoint, that a house located behind TCP-2 had been burned, and that several bodies, one of whom was a woman who apparently had been raped and burned, were inside. The noncommissioned officer in charge of TCP-1 called TCP-2 and stated that he was sending a patrol to check on the house behind TCP-2 and that he needed additional manpower. Twenty or so minutes later, Sergeant Anthony Yribe proceeded to TCP-2 with an Iraqi interpreter and several members of the Iraqi Army who were also stationed at TCP-1. They, along with Cortez and Spielman, went to the house to investigate. Upon their arrival, the investigation team immediately observed the deceased remains of a woman who had been shot in the face with a substantial portion of her body burned beyond recognition. The team also discovered three dead bodies in an adjacent room, each of whom had been shot at close range in the head or the chest. The investigation team attributed these killings to Iraqi counterinsurgents, and no crime scene investigation was initiated. When the investigation team returned to TCP-2, Green, in Barker's presence, told Yribe that he killed those people. Yribe met later that day with his superior and with the company commander, Captain John Goodwin, about the investigation, but he did not disclose Green's admission. The next day, March 13, Yribe, in Barker's presence, asked Green about the events of the prior day, and Green again admitted to committing the murder.

On March 28, 2006, following an earlier meeting with a Combat Stress Team, Green was diagnosed with an anti-social

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personality disorder and an adjustment disorder with depressed mood. On April 2, Brigade Commander Colonel Todd J. Ebel requested Green's early release from the Iraqi theater of operations on grounds of a personality disorder— a permissible basis for the Army to discharge an enlisted soldier prior to his completion of his term of service. See Army Regulation 635-200 ¶ 5-13 (permitting the Army to discharge a soldier " because of a personality disorder" ). On April 14, Green received a written notice from his company commander, Goodwin, indicating that he was initiating action pursuant to Army Regulation 635-200 ¶ 5-13 to separate Green from the military because of his personality disorder based on a determination that it " interferes with [Green's] ability to perform [his] duties and be a productive soldier." Goodwin recommended that Green receive an honorable discharge. Green signed the notice on April 16. On May 3, Green was released from the Iraqi theater of operations. At no point prior to his release did Green assert that the Army failed to follow its personnel regulations...

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