Friday, April 20, 2007

New published CGCCA decision

The Coast Guard Court issued a new published opinion today. United States v. Schiewe, __ M.J. ___, No. 1253 (C.G. Ct. Crim. App. 20 April 2007).

The court set aside a finding of guilty to a wrongful appropriation offense, finding that the providence inquiry did not establish Petty Officer Schiewe's guilt. Schiewe "was convicted of wrongful appropriation of various items of military property from his unit, Coast Guard Cutter FIR, having a total value of about $2,419." Schiewe, slip op. at 3. During the providence inquiry, Schiewe said he took the items home to refashion them into useful items for his ship. In his providence inquiry, Schiewe portrayed himself as something of a nautical Martha Stewart. And, oddly enough, just like Martha he was sentenced to five months in the slammer. (I swear I wrote the Martha Stewart analogy before I looked up the length of her sentence and discovered it was the same as Schiewe's. Of course, to Martha Stewart, "Big Chicken Dinner" means a large, well-cooked fowl accompanied by acorn squash dressing -- to Schiewe, it meant a punitive discharge.) But unlike Martha, Schiewe has prevailed on appeal.

The Coast Guard Court held that merely taking items from the ship without permission is not an Article 121 offense if the borrower believes that the property owner would have consented to the action. The Coast Guard Court held, "In this case, Appellant’s explanation that he believed he was entitled to remove the items from the ship based on his restricted work schedule and his previous history of working on Coast Guard projects at home was sufficient to raise the mistake of fact defense." Id. at 6. The military judge failed to inquire into this potential defense, thus requiring that the finding of guilty to the wrongful appropriation charge be set aside.

Kudos to the Coast Guard Court for not applying Sales to affirm the sentence despite setting aside one of the three specifications of which he was convicted.
Posted by Dwight Sullivan at 9:46 PM

6 comments:

John O'Connor said...

Okay, let me get this straight. The accused takes a PTA to plead guilty, which apparently provides him with some certainty on sentencing. As it turns out, the PTA doesn't affect the adjudged sentence. So on appeal, the kid completely reverses course and, after advocating at trial that he was guilty, now says that the very same facts do not support a finding of guilty.

I'm glad the kids who contested guilt at their court-martial are waiting in line behind this stinking dung heap of a case.

Kudos to the Coast Guard court? No. Coast Guard court, no soup for you.

Sat Apr 21, 09:38:00 AM EDT
Dwight Sullivan said...

I take a different tack than that of my learned colleague, J'OC. The requirement that a guilty plea be provident isn't some invention of an activist judiciary. Rather, it is a congressional requirement in the exercise of that body's constitutional authority and responsibility to make rules for the regulation of the land and naval forces. Look at the plain language of Article 45: "[I]f it appears that [the accused] had entered the plea of guilty improvidently or through lack of understanding of its meaning and effect . . . a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded guilty."

Congress intentionally chose to create a system where an accused could plead guilty only by admitting that he or she is actually guilty. That is a reflection of the lack of credibility that the military justice system had in 1950 -- when it would be reasonably feared that a junior service member might be strong-armed into pleading guilty to something he didn't actually do. Article 45 and judicial review of the providence inquiry protects not only the accused, but also the system from such an appearance. I think that the enhanced reputation of the military justice system actually does stem, in part, from this very requirement. When parents complain to their Members of Congress that Junior was railroaded, the system can -- and DOES -- respond that, in fact, Junior swore under oath that he really did commit the offense of which he was found guilty and described the facts that supported the plea. So, Dad, did Junior lie under oath or is he just sugarcoating it for you now? (That final sentence isn't actually in the response to the CONGRINT.)

A necessary part of making the system work in this way -- and obtaining the benefit to the military justice system that this creates -- is judicial review of the factual basis of the plea. If what the accused describes isn't actually a crime, then an appellate court MUST set aside the finding of guilty -- and that is a good thing (again, for both the accused and the government). Of course, if the accused describes a DIFFERENT crime than the one to which he or she pled, then the guilty finding can still be saved through application of the Felty doctrine. But if the accused doesn't acknowledge having done something that, as a matter of law, isn't a crime, the guilty plea can't survive. And that's what the Coast Guard Court said happened in Schiewe.

So defenders of the military justice system should stand up and give three Huzzas for the Coast Guard Court, protectors of the UCMJ.

I've got to run -- I hope this isn't abominably riddled with typos.

Sat Apr 21, 12:59:00 PM EDT
John O'Connor said...

The case still seemed like a stretch even under current doctrine, though I tend to agree that the problem is more with the system itself.

Sat Apr 21, 01:27:00 PM EDT
Dwight Sullivan said...

Here's an interesting excerpt from the House hearings on the UCMJ. This is Felix Larkin speaking -- he was a lawyer in the OSD general counsel's office who was the head of the working group that drafted the UCMJ. Referring to the heightened procedures that Article 45 requires before a guilty plea may be accepted, he observed: "I think it would have the added advantage of settling once and for all that he is the man who did what he is charged with doing and we would be relieved thereafter of the continually [sic] complaint of accused that they did not understand what they were doing when they took their pleas."

House Hearing at 1054.

The cost of that advantage is decisions like Schiewe. But Congress did choose this system.

Sun Apr 22, 10:36:00 AM EDT
John O'Connor said...

Though if I have my facts correct, Felix Larkin was talking about courts-martial under the new UCMJ where: (1) there would be no judge; (2) there would only be a "law officer" for GCMs; (3) an accused wouldn't have a right to a trained defense counsel for a SPCM (the UCMJ let the services refuse to provide defense counsel for SPCMs if they were "unavailable," and my understanding is that all the services took the position that trained defense counsel were unavailable for SPCMs.

I bet Moreno loves it that even UA dives get the full monty of appellate review, and he didn't mind waiting for those cases to get resolved.

I guess what I'm saying is that the rationale for cases like Schiewe made a lot more sense when Felix Larkin was testifying.

Sun Apr 22, 12:30:00 PM EDT
Dwight Sullivan said...

I think the system still obtains enormous benefits from the providence inquiry requirement -- and I say that after recently witnessing an Alford plea at a military commission, something that Article 45 is understood to prohibit in a court-martial. (Interestingly, in the House hearing on the UCMJ there is also a discussion about the unavailability of a nolo contendere plea in the military justice system. See House Hearings at 1054.) I personally think that the benefits outweigh the costs of the very occasional Schiewe opinion, plus the greater costs of appellate litigation in search of the elusive Schiewe opinion.

But that's a matter of opinion about which no one's opinion is better than anyone else's. What I don't think is merely a matter of opinion, but is a matter of legal judgment susceptible to better answers and worse answers -- and what is, I believe, a matter about which JO'C and I agree -- is that only Congress and not the President or the courts could choose to move to a system where appellate courts aren't obligated to assess whether the purported factual basis for a plea actually establishes the elements of the offense to which the accused pled guilty.

Sun Apr 22, 01:05:00 PM EDT

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