United States v. Humphries
| Decision Date | 15 June 2012 |
| Docket Number | 10-5004 |
| Court | United States Court of Appeals, Armed Forces Court of Appeals |
| Parties | UNITED STATES, Appellant and Cross-Appellee v. Ryan D. HUMPHRIES, Senior Airman U.S. Air Force, Appellee and Cross-Appellant Crim. App. No. 37491 |
Argued February 13, 2012
Military Judge: Grant L. Kratz
For Appellant and Cross-Appellee: Gerald R. Bruce, Esq. (argued) Lieutenant Colonel Linell A. Letendre.
For Appellee and Cross-Appellant: Dwight H. Sullivan, Esq. (argued); Major Michael S. Kerr (on brief).
Contrary to his pleas, a panel of officer and enlisted members sitting as a general court-martial, convicted Appellee of consensual sodomy and of adultery, in violation of Articles 125 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2006). The adjudged and approved sentence provided for a bad-conduct discharge and reduction to the grade of E-1. The United States Air Force Court of Criminal Appeals (AFCCA) determined that a bad-conduct discharge was inappropriately severe under the facts of the case. On certification under Article 67(a)(2) UCMJ, 10 U.S.C. § 867(a)(2) (2006), the Judge Advocate General of the Air Force (TJAG) asked us to hold that the AFCCA's action was an impermissible exercise of appellate clemency.[1] In addition, on December 15, 2011, we granted Appellee's cross-petition to determine the following issue:
WHETHER A CONTESTED ADULTERY SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.[2]
Appellee did not object to the form of the adultery specification at trial. Consistent with our recent decisions in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), we hold that it was error to omit the terminal element of Article 134, UCMJ, from the adultery specification. Because the law at the time of trial was settled and clearly contrary, it is enough that the error is plain now, and the error was forfeited rather than waived. See United States v. Harcrow, 66 M.J. 154, 156-58 (C.A.A.F. 2008). Applying the remainder of the plain error test, we further hold that, under the particular facts of this case, Appellee has shown material prejudice to a substantial right -- his right to notice under the Fifth and Sixth Amendments. Given that we are dismissing the finding of guilty to the Article 134, UCMJ, adultery charge, and returning the record of trial to TJAG for remand to the AFCCA for reassessment or, if necessary, for ordering a rehearing on the sentence, we do not reach the certified issue.
The events relevant to the decisional issue in this case relate to a sexual encounter between Appellee, who was married at the time, and AEH, a family friend of Appellee's and the wife of a deployed airman. Relative to this incident, the Government referred the following charges: (1) one charge and one specification of rape, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2006); (2) one charge and one specification each of adultery and wrongfully communicating a threat, violations of Article 134, UCMJ; and (3) one additional charge and one specification of forcible sodomy on divers occasions, in violation of Article 125, UCMJ.[3] As charged, neither the adultery specification nor the communicating a threat specification alleged the terminal element of Article 134, UCMJ.
At the close of the Article 39(a), 10 U.S.C. § 839(a) (2006), session, the parties agreed to a slightly modified charge sheet, admitted as the "flyer, " which still did not allege the terminal element for the Article 134, UCMJ, specifications. Appellee pleaded not guilty to the charges and specifications as described in the flyer. There was no mention of the terminal element of the Article 134, UCMJ, offenses during the Article 39(a), UCMJ, session, during opening statements, or at any point up until the military judge provided the parties with his draft panel instructions. In these instructions, which were provided to the panel, the military judge defined clauses 1 and 2 of the terminal element and listed it as a necessary element of each Article 134, UCMJ, offense.
Throughout the proceedings, the Government's theory of guilt was that Appellee had forcibly raped and sodomized AEH. Even during closing arguments, the Government made only the briefest mention of the adultery charge and specification and at no point referenced the terminal element of Article 134, UCMJ.
After deliberation, the panel convicted Appellee of adultery, in violation of Article 134, UCMJ, and of consensual sodomy, as a lesser included offense of the Article 125, UCMJ, forcible sodomy charge. The panel found Appellee not guilty of rape and forcible sodomy. Appellee's sentence, which the convening authority approved, was a bad-conduct discharge and reduction to the grade of E-1.
As relevant to the certified issue, the AFCCA found that Appellee's crimes were "aggravated by the fact that they were committed: (1) in base housing; (2) with the spouse of a deployed service member; and (3) at a time when he was married and the father of three minor children." United States v. Humphries, No. ACM 37491, 2010 CCA LEXIS 236, at *7, 2010 WL 2266324, at *2 (unpublished). Nonetheless, it determined that "given the consensual nature of his crimes, an unsuspended punitive discharge [was] inappropriately severe." 2010 CCA LEXIS 236, at *8, 2010 WL 26634, at *2. While there is additional procedural history relevant to the certified issue, it is not relevant to the decisional issue in this case.
"Whether a specification is defective and the remedy for such error are questions of law, which we review de novo." Ballan, 71 M.J. at 33 (citing United States v Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006); United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)).
The alleged error in this case, as in Ballan and Fosler, is that the Article 134, UCMJ, specification was defective because it failed to allege the terminal element of that offense. See id. at 34; Fosler, 70 M.J. at 232-33. As in those cases, the specification at issue here was legally sufficient at the time the case was referred (February 13, 2009) and tried (March through May, 2009) and is "problematic today only because of intervening changes in the law." Ballan, 71 M.J. at 34 n.4 (citing Fosler, 70 M.J. at 232; United States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982)). Under current law, "the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven." Id. at 33. And, "regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication." Id. at 34; see also Fosler, 70 M.J. at 232 (). Although Appellee did not object to the defective specification at trial, this is hardly surprising, as any such objection would have been futile based on the state of the law at the time of trial. Where the law was settled at the time of trial and has subsequently changed, we apply the law as it exists today. See Girouard, 70 M.J. at 11 .
The existence of error alone does not dictate that relief in the form of a dismissal is available. While a specification that fails to properly allege an element of a charged offense is defective, and while such a defect affects constitutional rights, it does not constitute structural error subject to automatic dismissal. See Girouard, 70 M.J. at 11; see also Neder v. United States, 527 U.S. 1, 8 (1999) .
Nor does the apparently straightforward language of Rule for Courts-Martial (R.C.M.) 907(b)(1)(B) -- which provides that "[a] charge or specification shall be dismissed at any stage of the proceedings if . . . [t]he specification fails to state an offense" (emphasis added) -- survive the erosion of the legal basis for its existence and thus mandate automatic dismissal of a defective specification. When this R.C.M. provision was enacted, it was based on the then-existing version of Federal Rules of Criminal Procedure 12(b)(2) and 34. See Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial app. 21 at A21-56 (2008 ed.) (MCM); see also Fed R. Crim. P. 12(b)(1), (2) advisory committee's note (1944 adoption) (establishing a set of objections and defenses, including "failure of an indictment or information to state an offense, " which if not raised by motion were nonetheless not waived). At that time, in accordance with Supreme Court precedent, where an indictment was found defective for failing to list all elements of an offense, it was necessarily dismissed on jurisdictional grounds (regardless of when the error was raised). Ex parte Bain, 121 U.S. 1, 13-14 (1887) (). Jurisdictional requirements were even more stringent in the military context, where failure to allege a "service connection" stripped the military court of jurisdiction and mandated dismissal. O'Callahan v. Parker, 395 U.S. 258, 272-73 (1969); see also Relford v. Commandant, 401 U.S. 355, 367-69 (1971) (...
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