Friday, January 02, 2009

Breaking News: No Man Realizes Fairley is Apprendi Case, Nearly Fries Computer With Coffee

Ok, since about June 28, 2008 I have been largely asleep at the MilJus switch. And since August 12, 2008 I have been asleep at the Apprendi switch. However, this morning when I read Maj. Hoege's article and Judge Beal's ruling in United States v. Fairley, see here, I nearly fried my computer with the coffee that poured out of my nose. I won't flatter myself that maybe all those Apprendi supplemental assignments of error I wrote at Code 46 penetrated deep into Maj. Beal's subconscious. But, whatever the cause, it is a great day for military justice that Apprendi v. New Jersey may now be applied to courts-martial.

On pages 5-6 of now LtCol Beal's Fairley opinion LtCol Beal discusses the concept of an element of an offense that is not set out in the offense, though strangely those 2 paragraphs are the only without legal citation in the opinion. To those that can follow my madness, I would call that the functional equivalent of an element so allow me to supply a few citations . . . more later.


Anonymous said...

I think the problem is that many people, particularly those in appellate defense, read way too much into Apprendi. In Apprendi, the Supreme Court specifically stated they were deciding a “narrow issue.” Page 474. The narrow holding of Apprendi was that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Page 476. This principle of law is incorporated into the military justice system through R.C.M. 307(c)(3). This obsession with expanding Apprendi beyond its subject matter in order to get CAAF to specifically apply it to one of its decisions is like watching someone try to get a kid to play with a toy he doesn't want or need. There is a whole body of case law (Patterson v. New York; Dixon v. United States; etc.) that deals with elements v. affirmative defenses and allocation of the burden of proof. The Article 120 burden shifting, no matter how stupid and poorly implemented an idea it may have been, is not an Apprendi issue.

Dew_Process said...

No Man - what about Specs under Art. 134, that fail to allege the clause it's charged under? I've tilted at that windmill since Apprendi was first decided. But, hopefully your computer recovered and I agree that under Judge Beal's analysis, it's a fertile ground of attack.

The new 3 Stars need to get Congress to fix this otherwise the trial and appellate litigation will be mind-numbing.

Dew_Process said...

Anon 1543: You cannot read Apprendi and its progeny without looking at how the Supremes handled the issue in Jones v. U.S., 526 U.S. 227, 229 (1999). Apprendi was basically an application of Jones under the 14th Amendment to the States.

I will agree with you that military pleading is generally, by necessity, Jones/Apprendi compliant, with the exception of Articles 133 and 134, and now, the new Art. 120.

The more germane issue in general to military practice is where sentencing is a contested process, must the members faced with conflicting "evidence" be instructed that they must resolve the "facts" first BRD, before they consider sentencing? "Matters in aggravation" seem to open the Jones/Apprendi door - and of course, the Defense failure to timely object/request relief, is almost always going to be waiver.

Mike "No Man" Navarre said...

Anon 1543:

Amazing how your narrow issue invalidated the entire US Sentencing Guidelines Manual. It may have been a narrow holding when Apprendi was decided, but it became a snowball rolling down hill with Ring v. Arizona, Blakely v. Washington, and Booker v. United States, to name a few. I also once read that Apprendi was one of the most cited case in federal decisions. Considering it is less than a decade old that is remarkable for a "narrow decision."

While I don't disagree that most of the MilJus system is Apprendi-proof, that doesn't mean that the rest of the system that is not should be left to violate a new constitutional rule (Supreme Court's words, not mine). A lot of people thought that the factors in the USSG did not need to be found BaRD, but lo and behold, many of them did. See Booker.

A lot of US District Court judges before Booker discarded Apprendi in the USSG context as an unwanted toy. But, again, it was Apprendi that had the last laugh. Ultimately, Apprendi has reversed two Supreme Court decisions that were handed down in the decade before it (Mistretta and Walton v. Ariz) and totally changed the way criminal defendants are sentenced. I just can't see how that is (a) a narrow decision anymore or (b) a toy any appellate defense counsel would not want for Christmas every year.

Publius said...

I must be missing something. I thought Apprendi and Booker required a jury to find beyond a reasonable doubt any fact (other than a prior conviction) that increased the statutory maximum sentence that could be imposed. Most offenses in the military don't have statutory maximums -- as a court-martial may direct -- and the military already requires any sentencing enhancer be proved beyond a reasonable doubt. For example, the offense of sodomy. If the Govt wants to take advantage of the possible enhanced punishments, they have to plead and prove beyond a reasonable doubt that the sodomy was with a child or by force.

Dew_Process said...

Publius - no, you're basically correct. The Jones / Apprendi issue primarily arises in the context of Article 134, Specs and also 133 - before the new Art. 120, which no one can figure out.

And as I noted up thread, I think the gov't can trigger it during sentencing depending on what aggravation "evidence" they are attempting to rely on.

Publius said...

But what kind of aggravation evidence would increase the maximum punishment?

Mike "No Man" Navarre said...


I will give you an example, though I have to say the burden of proof argument has never been the focus of my MilJus Apprendi crusade: Mt crusade has been more focused on what branch of government gets to decide what is and is not an aggravating factor:

RCM 1004 weighing determination that CAAF said in Loving v. Gary is an eligibility determination.

Anonymous said...


Your reference to Booker proves my point. Booker dealt with portions of the sentencing guidelines where the sentencing range was set by the judge finding particular facts by a preponderence of the evidence, and not by the finder of fact beyond a reasonable doubt. Booker, Ring, and Blakely all dealt with the same "narrow issue" dealt with in Apprendi and Jones. Just because Apprendi is aplicable to those cases, doesn't magically make it applicable to the Article 120 issues.

Anon 1543

Dew_Process said...

Publius - hypothetical.

Def guilty of disrespect to superior commissioned officer. Gov't "in aggravation" claims officer was "in execution of his duties," to justify BCD. Defense claims not true.

Under Booker & its progeny, if the gov't is going to claim this as "fact" to justify the BCD, shouldn't the panel be instructed that they have to find it so beyond a reasonable doubt first?

Anonymous said...

As another potential Apprendi issue in the military justice system, what about the sentencing regime set up under Article 119alpha, "Death/injury of an unborn child"?

The maximum authorized sentence for the offense "shall be consistent with the punishment prescribed by the President for that conduct had that injury or death occurred to the unborn child's mother."

But imagine, for example, a case where the child dies but the mother does not (or the accused is found not guilty of killing the mother).

What finding, proved beyond a reasonable doubt, would be the basis for calculating the maximum authorized sentence for the death of the child? In other words, which of the various forms of homicide -- with widely varying maximum authorized punishments -- would the accused be guilty of having committed, if had he actually killed (or been found guilty of killing) the mother, instead of the child?

How would a sentencing authority determine the answer to that question, in a manner consistent with the Constitutional, statutory, and regulatory standards governing a court-martial?

[Personally, based on my reading of Professor Falvey's article on the offense, I think the MCM was wrong in simply parroting the statutory "shall be consistent with..." language. Instead, it should have actually set forth some specific punishment for each form of the offense. If it had done so, the true legislative intent would have been honored without ever creating this issue.]

Publius said...

Dew Process

The President has authorized a BCD for disrespect to superior commissioned officer. MCM Part IV para 13e. Whether or not the officer was in the execution of his office does not increase the maximum punishment. Therefore, Apprendi and Booker don't apply.

Dew_Process said...

Publius - that 's the first problem; what do you do to a 2LT who's disrespectful to a Colonel and the Max Punishment Table doesn't reflect anything but a BCD?

What I'm talking about is "aggravation evidence" per RCM 1001(a)(4) - Under Jones/Apprendi if the prosecution uses a "fact" to enhance punishment, that "fact" must be proven beyond a reasonable doubt by the fact-finder. One reading of Booker is that prosecution evidence in aggravation must be found to exist beyond a reasonable doubt IF the government wants that considered for sentencing purposes.

Publius said...

Dew Process

(1) Regarding the Lt who is disrespectful to a superior commissioned officer, a dismissal is authorized. See R.C.M. 1003(b)(8)(A) (a dismissal may be adjudged for any offense of which an officer is convicted in a GCM).

(2) You read Booker differently than do I. I still think Booker only applies if the fact in question increases the maximum authorized punishment.

Dew_Process said...

Publius - I realize what RCM 1003(b) says about a Dismissal, but what about where the Officer is convicted of a 2 day AWOL? There's no punitive separation component of the max punishment. My scenario arose where we got not guilty's on the 2Lt's disrespect to his Colonel, breaking restriction, and drunk on duty charges, but got tagged for the 2 day AWOL. The arguments were "mooted" by the actual sentence, a Reprimand, as the panel knew he wouldn't get promoted to 1LT, which then was an automatic Admin Separation.

Admittedly, the above scenario is going to be rare, and having been a Trial Counsel, I know all of the arguments about Officers and "special trust" etc. But, it's fundamentally unfair and AS APPLIED may be unconstitutional.

But, Apprendi/Jones/Booker can be read in more than one way - that's the issue. Don't know if you ever did any cases in federal court when the guidelines were mandatory, but what would sometimes happen is that the prosecution would seek an "upward departure" based upon some "aggravating factor" to the guideline "range" that mysteriously showed up in the presentence report, but not before the jury. The max sentence was set by statute, but the "guidelines" were presumptive and allowed for upward and downward departures.

When SCOTUS said that if you were going to do an upward departure, based solely upon a "fact" introduced at sentencing, to be constitutional, a jury had to find that fact BRD.

The issue then becomes, is the military sentencing procedure "unique" enough to justify another rule?

But, thanks for the discourse here. I appreciate the debate, especially in a civil manner!