Why does the Coast Guard Court have a "Panel Ten" and other important questions inspired by today's Holbrook decision

The Coast Guard Court today issued a published opinion in United States v. Holbrook, __ M.J. ___, No. CGCMS 24329 (10 Jan. 2007).

First some questions about numbers. Can one of our many Coast Guard readers tell us what "CGCMS 24329" means. Holbrook was a special court-martial, so perhaps CGCMS stands for Coast Guard Court-Martial Special. If so, where does the "24329" come from? Is this the 24,329th special court-martial tried by the Coast Guard under the UCMJ? Or since the Coast Guard became the "Coast Guard" in 1915? Or since the United States Revenue Cutter Service was founded in 1790?

Today's decision was issued by the CGCCA's Panel Ten. Panel Ten? How many panels does the Coast Guard Court have? How many panels does the Coast Guard Court need? CGCCA's web site tells us that "[t]he Coast Guard Court of Criminal Appeals is normally composed of five appellate judges organized in panels of three for consideration of referred cases." Someone with better math skills than me (a group consisting of virtually every sentient being on planet Earth older than nine) check me on this, but I think that five people can be divided into a maximum of ten unique groups of three. If I'm right about that, then is there, in fact, a separate Coast Guard Court panel for every possible combination of judges? If so, uh, why?

Aside from these questions, which have little to do with the Holbrook case itself, today's CGCCA decision is noteworthy for three reasons: (1) its discussion of fraudulent enlistment; (2) its analysis of the Article 134 offense of fleeing the scene of an accident; and (3) its application of United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).

First the fraudulent enlistment. Before entering the Coast Guard, Seaman Holbrook had apparently consumed prodigious amounts of marijuana and had become addicted to methamphetamine, leading to a two-month treatment in a drug rehabilitation program. On his enlistment documents, Seaman Holbrook synopsized his drug use with the phrase "experimented with marijuana, but no other drugs." The Coast Guard Court rejected the defense's argument that Holbrook's plea to fraudulent enlistment was improvident because, according to the defense, an element of fraudulent enlistment is that the accused not only knew that he made false statements to the recruiter, but also knew that those false statements were material. As applied to this case, that standard would require not just that Holbrook knew his statement about drug use was false, but also that he actually knew that the Coast Guard would not enlist him had he told the truth about his preservice drug use.

The Coast Guard Court rejected this argument. The court ruled that "[n]either the plain language of [Article 83(1)] nor the longstanding case law in this area requires contemporaneous knowledge that a false representation or deliberate concealment will be determinative. The falsehood or concealment must be knowingly made. It must, in fact, result in the procurement of the enlistment. An accused is not, however, required to understand the full impact of a complete or truthful answer at the time of the false statement or concealment. This would, essentially, require complete knowledge of the service's enlistment standards and policies before entry into active duty. There is no such requirement." Holbrook, slip op. at 5. Okay, got it. Clear, lucid, and probably right.

But, at the end of the very next paragraph, the Coast Guard Court tells us, "Appellant knew his false answer was material, and Assignment of Error I is rejected. We do not address the hypothetical question of whether a lack of contemporaneous knowledge of materiality would be fatal to the charge since Appellant clearly knew that his answer was material." Id. Am I misreading something? It seems to me that the paragraph that directly precedes the one with the "We do not address" language DOES address that very question. You know, the paragraph that begins with, "We reject Appellant's expanded definition of materiality" and ends with "There is no such requirement." Can anyone reconcile the final sentence in the discussion of Assignment I with its preceding paragraph?

Now onto the fleeing the scene issue. I love practicing criminal law. This issue reminds me why. Almost every single criminal case has some interesting aspect. Here's what's interesting in the Holbrook case:

On 29 June 2004, [Seaman Holbrook]he was driving a government-owned Chevy Blazer. He had consumed eight beers during the previous four to five hours but maintained that he was not intoxicated at the time. While waiting at a traffic light, Appellant’s foot slipped off the brake pedal, and the government SUV “bumped” the van in front of it at about one mile per hour. (R. at 68.) Appellant reversed the SUV, and both he and his passenger looked for any damage to the van. None was visible. When the light turned green, both vehicles moved through the intersection. The van, however, pulled over to the side of the road. Appellant panicked and accelerated away from the parked van at around forty miles per hour through a residential area. Some time later he lost control in a turn, collided with a house, and totaled the government’s Chevy Blazer.

Holbrook, slip op. at 3.

The Coast Guard Court goes on to explain in some detail why leaving the scene of an accident isn't an offense if the accident caused no property damage or injury. Id. at 5-6. I'm just amused that Holbrook managed to "collide[] with a house."

Despite finding that Holbrook had been wrongly convicted of fleeing the scene of an accident, CGCCA applied Sales and granted no sentence relief on that basis. Id. at 8-9. I have previously railed against Sales, but even I must admit that no sentence relief seems warranted here, especially if the case is analyzed under Judge Baker's Moffeit criteria. See generally United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring).

But the Coast Guard Court does grant relief for post-trial delay. The court doesn't set out a complete post-trial timeline, but from the facts sprinkled throughout the opinion, here's what we know. An authenticated record was produced 119 days after trial, the CA acted 162 days after trial, the case was forwarded to the Judge Advocate General 208 days after trial, it was docketed with the CCA 217 days after trial, and it was decided 21 months and 4 days after trial. What word would we use for such a pace in the Department of the Navy? "Alacrity"? The Coast Guard Court chose a different word: "unreasonable." Holbrook, slip op. at 8. Applying a Tardif sentence appropriate analysis to this pre-Moreno guideline case, the court upgraded Holbrook's reduction in rate by one paygrade (from reduction to E-1 to reduction to E-2). In the Department of the Navy, this relief would have been entirely illusionary because Holbrook still would have been automatically reduced to E-1 as the result of either the approved BCD or the length of confinement. See Manual of the Judge Advocate General of the Navy § 0152. I assume that some Coast Guard regulation provides greater protections from Article 58a's automatic reduction provision and that Holbrook's Tardif analysis isn't just an elaborate charade.

At some point tomorrow I'll try to summarize all of the questions I ask in this post and we'll track whether any of our Coast Guard friends provide the answers.

Semper Paratus,
Dwight Sullivan