Wednesday, August 15, 2007

Unreserved jurisdiction

The Coast Guard Court of Criminal Appeals has posted a new decision on its web site. United States v. Wimett, Dkt. No. 1258 (C.G. Ct. Crim. App. Aug. 15, 2007). It isn't immediately apparent whether the opinion is to be published or not, but its length (3 pages) suggests an unpublished opinion.

The accused was a member of the Coast Guard Selective Reserve. On appeal, the defense argued that the court-martial didn't have jurisdiction because Petty Officer Wimett had not been recalled from his reserve status to active duty by a general court-martial convening authority as required by Article 2 of the UCMJ. The opinion suggests that the defense relied on the fact that the actual travel orders recalling Petty Officer Wimett were issued by a petty officer and not by a general court-martial convening authority (GCMCA).

The Special Court-Martial Convening Authority asked the GCMCA to order that Petty Officer Wimett "be involuntarily recalled to active duty on July 29, 2005 for trial by special court-martial pursuant to Article 2(d)(1)." Wimett, slip op. at 2. The GCMCA asked the Commandant of the Coast Guard for permission "for me to order YN2 Wimett to active duty involuntarily for the purpose of a special court-martial." Id. at 3. The Commandant approved the request. Id. A petty officer then cut the travel orders recalling Petty Officer Wimett.

The Coast Guard Court emphasized the distinction "between the authority to order a reservist to active duty, and the administrative act of processing the order." Id. The court reasoned: "Neither the UCMJ nor Coast Guard regulations specify the form in which such a recall is to occur. The UCMJ does not require that the recall order be in writing, or that the GCMCA personally sign the recall order. . . . We are convinced by the entire record that Appellant was ordered to active duty by the GCMCA after receiving permission from the Commandant, and the court-martial had personal jurisdiction over Appellant." Id.

Let's look at Article 2(d)(4). It specifies: "A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces."

Who ordered Petty Officer Wimett to active duty? The opinion suggests that the government couldn't come up with any document in which the GCMCA directly ordered Wimett to active duty or where someone else did so acting by direction of the GCMCA. And the government bears the burden of proving jurisdiction, so the absence of any such document must be treated as conclusive of such documentation's nonexistence.

This seems to me to be one of those cases that periodically arise in military justice practice where the spirit of the law has been followed but the letter of the law has not. In such cases, Judge Erdmann often insists that the government adhere to the letter of the law. So I would expect at least one vote to grant review in this case. My guess is that Judge Erdmann will pick up the necessary second vote on this one as well.

In cases like this, both the officials convening a court-martial and later reviewing authorities should keep in mind the Supreme Court's admonition in the famous case of Runkle v. United States, 122 U.S. 543 (1887):

A court-martial organized under the law of the United States is a court of special and limited jurisdiction. . . . To give effect to its sentences, 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 complied with; and that its sentence was conformable to law.


Id. at 555-56.

Was Petty Officer Wimett's court-martial "unequivocally" legally constituted? Were "all the statutory regulations" governing its creation complied with? The Coast Guard Court seemed to answer those questions by saying, "Close enough." Runkle suggests that isn't a satisfactory answer.

8 comments:

John O'Connor said...

This is where the military justice system is broken. This accused pleaded guilty pursuant to a PTA; consequently, the factual record was never developed at trial concerning the GCMCA's ordering the accused to active duty. I know, jurisdiction is not waivable, but in an ordinary system, this case falls by the wayside because there is no appeal, where the MJ system details counsel to flyspeck the record for whatever mischief they can conceivably cause (and I don't mean that pejoratively, that's the job the service assigns them to do).

Not having researched the issue, it seems to me that what was done here ought to be enough. The GCMCA sought, and received, permission to order the accused back to acitve duty; that a petty officer cut the orders doesn't change, in my mind, that this is coming from the GCMCA.

But let's think about the reality here for a minute. Say CAAF takes the case and reverses. What happens next? Presumably, the GCMCA signs the orders, and maybe personally grabs a hop to the accused's home of record to personally act as a chaser to bring the accused back to active duty. What happens at the accused's court-martial? Presumably, he pleads guilty again and gets the same BCD that he got before. What a good use of resources. I doubt he would plead not guilty because, as I read the rules, he would lose his confinement protection from his PTA.

Anonymous said...

If he wins the appeal, doesn't he lose the protection from the PTA anyway? Unless, of course, the gov't agrees to the same PTA again. In fact, when an accused attacks his guilty plea, isn't he always going to lose the PTA and only have the protection of the original adjudged sentence?

John O'Connor said...

Anonymous,

You're right. MY comment was a little bit off the mark.

I believe that the remission of the sentence of confinement once the period of suspension has run means that no confinement could be adjudged on rehearing. United States v. Ferguson, 27 M.J. 660 (NMCMR 1988) (case was affirmed but I didn't write down the cite). Indeed, with respect to this case, from the Coast Guard opinion, the suspension of confinement here was a nullity because the CA forgot to defer confinement, so the accused's 90-day confinement ran fronm the day of trial (when he presumably didn't have to go through the indignity of actually being confined).

So you're right, the accused here is maxed out at a BCD with no confinement, so he conceivably could plead not guilty and try to avoid the BCD. I'd pick members for that retrial I think.

bill Cassara said...

Odds are the USCG offers him a discharge in lieu of, so the appeal works out to his benefit. I doubt they will want to spend the money to try him again just to get a BCD.

No Man said...
This comment has been removed by the author.
No Man said...

I agree with the principle behind CAAFlog's issue with the CGCCA. Just as the government is required to ensure the accused providently pleads to every element of the crime, they should be charged with ensuring the element of jurisdiction is met. I think this goes back to the Alfred plea issue and the requirement of provident pleas. Until the providence requirement is changed, which I don't see happening any time soon, we'll have these cases.

Ostensibly, this case is about the signature block the Petty Officer used on the recall orders. If it had said "By Direction," no one would have any issue here.

Publius said...

If the CAAF were interested in taking this case, I would suggest it might be worth while to order a post-trial hearing or by some other method develop a record on which they could decide the case.

I agree with Bill Cassara that if the case got busted, the CG would probably opt to work out a discharge in lieu of court-martial.

The main reason I decided to comment was to suggest that despite the strong language in Runkle v. United States, the case may have been limited by later case law. In Runkle, the Supreme Court held that the Secretary of War's endorsement of Major Runkle's court-martial was insufficient to meet the requirements of law--requiring the President to confirm or disapprove the findings of the court-martial.

In United States v. Page, 137 U.S. 673 (1891), the Supreme Court revisited the issue. The Secretary of War signed the action confirming the accused's sentence but included a statement that, in conformity with Article 65, the case had been submitted to the President. The Supreme Court held that the judgment of the President confirming a sentence of a court-martial need not be attested by the President's signature: "Where the record discloses that the proceedings have been laid before the President for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the Secretary by whom they are authenticated." Id. at 680.

In United States v. Fletcher, 148 U.S. 84 (1892), the Secretary of War signed the action approving the findings and sentence. The Secretary's endorsement stated that the record had been forwarded to the Secretary of War for action by the President, but did not say that the case had been submitted to the President. Nevertheless, the Supreme Court held that the endorsement of the Secretary that the proceedings were forwarded as usual was sufficient authentication of the judgment of the President. Id. at 89-90.

I don't know what CAAF would do with this, but I think the lines are a little more blurred than Runkle suggests.

CAAFlog said...

Good point, Publius. But in McClaughry v. Deming, 186 U.S. 49 (1902) -- decided a decade after Fletcher and 11 years after Page -- the Supremes reiterated the proposition from Runkle that I cited in the post. 186 U.S. at 63. I think one ignores Runkle (as reiterated by McClaughry) at one's own peril.