Monday, December 03, 2007

Ask not for whom the bell tolls; it tolls for ACCA's Roach opinion

Please check me on this one. I must not be reading the law correctly because if I am, ACCA's published opinion in Roach is not only obviously wrong, but is directly repudiated by a CMA case that the opinion actually cites. See United States v. Roach, __ M.J. ___, No. ARMY 20050018 (A. Ct. Crim. App. Nov. 30, 2007).

PVT Roach pled guilty to and was found guilty of stealing a night vision goggle and conspiring to steal a night vision goggle. Neither spec alleged that the NVG was military property, but all of the trial's participants operated on the assumption that the military property sentencing aggravator applied. (The larceny spec alleged that PVT Roach stole a "Night Vision Goggle (AN PVS-14), of a value of about $3,138.00, the property of the United States Government." As ACCA noted, "Neither specification included the specific words 'military property' when describing the NVG." Id., slip op. at 3.)

The military judge nevertheless told PVT Roach that the military nature of the property was an element of the offense, defined "military property," and elicited Roach's agreement that the NVG was military property.

ACCA found that "the unique military nature of an NVG is readily apparent from its purpose and function." Id., slip op. at 6. The court continued:

Equally significant, both the larceny and conspiracy specifications alleged that the property was stolen "at or near Fort Benning, Georgia" and was an "AN/PVS-14, [Night Vision Goggle]6 . . . property of the United States Government." (emphasis added). Accordingly, the unique military nomenclature of the stolen NVG, location of theft, and identification of the item as belonging to the United States Government is sufficient on these facts to fairly characterize the property as military property.

Id.

ACCA concluded:

The specifications provided sufficient notice that the object of the larceny and conspiracy was military property, protected appellant from double jeopardy, and appellant has alleged no specific prejudice due to the omission. Consequently, "under the circumstances of this case, the specification is sufficient to withstand challenge at this late stage of the proceedings." Watkins, 21 M.J. at 210.

Id., slip op. at 7.

Here's the weird part. ACCA includes this quotation in the first paragraph of its discussion: "There is no special repercussion at all flowing from whether the property was 'property of the United States Government.' United States v. Hemingway, 36 M.J. 349, 352 (C.M.A. 1993)." Roach, slip op. at 6. Let's look at the two sentences that immediately follow that one in Hemingway, shall we?

Consequently, we agree with appellant that, in the absence of an allegation that the object of the conspiracy to steal was "military property," the maximum confinement imposable for each of the two conspiracy specifications here was 5 years. See [Manual for Courts-Martial, United State (1984),] para. 46e(1)(d) (Change 3). This reduces the total maximum sentence to confinement that appellant faced to 30 years (5 years for each conspiracy and 10 years for each larceny of military property), not 40 years, as the military judge advised.

Hemingway, 36 M.J. at 352.

Am I misreading Judge Wiss's opinion for a unanimous court, or does Hemingway address exactly the issue decided by Roach and reach exactly the opposite conclusion? If I'm not misreading it, how could ACCA have quoted Hemingway without discovering that the very next sentence compels the opposite conclusion from the one ACCA reached?

Now the Hemingway opinion might not ultimately help PVT Roach. It certainly didn't help Specialist Hemingway. CMA concluded that Hemingway would have pled out with the same deal regardless of whether his maximum sentence was calculated at the military property or non-military property rate. But even if ACCA reached the right result in Roach, it seems to have done so by an impermissible means -- by ignoring CMA's holding that "in the absence of an allegation that the object of the conspiracy to steal was 'military property,' the maximum confinement imposable for each of the two conspiracy specifications here was 5 years." 36 M.J. at 352.

2 comments:

Justin said...

The key for the court appears to be the part about the specification's sustainability if “necessary facts appear in any form, or by fair construction can be found, within the terms of the specification.”

They thought "AV/PVS-14 [Night Vision Goggles]" fairly defined some uniquely military property, in the same way that "M1A1 Abrams Tank" would, and in a way that court's cited example -- "telephone" (from Schiavo) -- does not.

CAAFlog said...

Justin,

Thanks for engaging on this! I think you are right about how ACCA framed the issue, but I think ACCA's framing is inconsistent with CAAF's -- and we know who trumps whom.

Here is the crucial passage from Hemingway:

Second, and more viably, he points out that the two conspiracy specifications allege that the checks that he and Hooker conspired to forge and the money that they conspired to steal were "property of the United States Government,"not "military property." Thus, he argues, the military judge erred when he concluded, and advised appellant, that each conspiracy specification carried a maximum of 10 years rather than 5 years. We agree that the maximum sentence was erroneously calculated in this regard, but we disagree with appellant that this caused his pleas to be improvident.

Paragraph 46b(1)(a)-(d) correctly sets out the elements of larceny under Article 121 of the Uniform Code. Additionally, as we mentioned earlier, a "Note" that follows subparagraph (d) states, "If the property is alleged to be military property, as defined in paragraph 32c(1), add the following element"; the "following element" is, "(e) That the property was military property." (Change 3). Furthermore, in paragraph 46e (Change 3), where the President has set out the maximum punishments, the delineations are whether the value of the property stolen was more than $ 100 and whether the property stolen was "military property." There is no special repercussion at all flowing from whether the property was "property of the United States Government."

Consequently, we agree with appellant that, in the absence of an allegation that the object of the conspiracy to steal was "military property," the maximum confinement imposable for each of the two conspiracy specifications here was 5 years. See para. 46e(1)(d) (Change 3). This reduces the total maximum sentence to confinement that appellant faced to 30 years (5 years for each conspiracy and 10 years for each larceny of military property), not 40 years, as the military judge advised.

United States v. Hemingway, 36 M.J. 349, 352 (C.M.A. 1993).

That same note about adding the element "That the property was military property" appears in Pt. IV of the 2005 MCM. See MCM at ¶ 46(b)(1)(e).

In this case, the specs alleged that the night vision goggle was "the property of the United States Government." Neither spec added the element that the NVG "was military property." So it looks to me that under Hemingway, ACCA's conclusion cannot be sustained.