Wednesday, June 10, 2009

CAAF overrules cases treating prejudice to good order and discipline or service discrediting conduct as implicit in every UCMJ punitive article

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a 'simple disorder,' under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an 'offense necessarily included' under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court's previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

PVT Miller pleaded not guilty to resisting apprehension, but was nevertheless convicted of the offense. ACCA found that the evidence was factually insufficient to support a finding of guilty to resisting apprehension because he was already in custody when he tried to abscond and when he struck a Korean National Police investigator. ACCA instead affirmed a finding of guilty to a simple disorder, concluding that it could "substitute a lesser-included offense for the disapproved" finding "even if the lesser-included offenses was neither considered nor instructed upon at the trial of the case." ACCA also reasoned that PVT Miller was on notice of the LIO of a simple disorder "because every enumerated offense under the UCMJ is per se prejudicial to good order and discipline or service-discrediting." (quoting United States v. Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000)).

Wrong answer, rules CAAF.

CAAF observes that the test for an LIO is whether the offense's elements are a subset of the greater offense's elements. And CAAF observes that Article 134 contains an element not present in Article 95: that the conduct be prejudicial to good order and discipline or service discrediting. CAAF then announced Miller's significant holding: "To the extent [previous decisions] support the proposition that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense, they are overruled." Miller, slip op. at 10.

CAAF then concluded, "Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ. Consequently, the CCA was not authorized to affirm a finding of guilt to a simple disorder under Article 134, UCMJ." Id. (footnote omitted).

Finally, CAAF remands the case to ACCA for reassessment of the sentence.

In a term of narrow opinions, Miller stands out for its importance.


Anonymous said...

Too bad "Justice Ryan" didn't get to vote in Denedo, eh.

Bridget said...

Indeed, not to diminish the glow of Denedo, but this case is far more important to to the every day practice of military law, both for defense and trial counsel. It will be interesting to see how this will change the drafting of charges. [In the USMC, anticipate that it will mean even more "kitchen sink" charges].

I note that this decision confirms MHO that Wilcox was a more significant case than many thought.

If I end up luring more law students into a military justice class this will be added to the course.

Socrates said...

Miller is indeed a significant case and will have more of an impact than Denedo. CAAF carefully applied the law here, with more precision than the service courts of appeal had (or would).

Anonymous said...

This is a significant move forward for military justice. U.S. v. Foster was bad law the day it was handed down.

That being said, it did not take a Genuis to see this result. During oral argument in U.S. v. Thompson, earlier this term, Judge Stucky was openly mocking the idea of a LIO of a 134 simple disorder. If memory serves, it his quip was something along the lines of there is no law against jumping off a bridge, but there should have been, you are guilty. See also his dissent in Medina. Judge Ryan was equally unimpressed with the idea of finding a simple 134, as she also expressed in FN5 of U.S. v. Wilcox.

We shall see what happens in U.S. v. McCracken.

Anonymous said...

Cut number 123: Conduct prejudicial to good order and discipline and/or service discrediting conduct are not implicit in the enumerated articles? In my death by a thousand cuts theory, Denedo and Miller are 122 and 123 respectively. Of course the lawyers that practice military justice (JAGs, USMC JAs, and a select group of civilians) are the ones inflicting the cuts. 877 more and we will all be out of work. Well done.

Cossio said...

Como what !? You're not the same Anon that said "ignore Cossio send 123 ?"

This numbers thing has got me confused. If you would be so kind sir and open your medicine cabinet and tell us the medication you curently are on, I think that would explain your disconnect from reality.

Anonymous said...

Cossio, only in your inappropriately synapses-firing mind would you think us one in the same. Although, I too would recommend to ignore the self-proclaimed genius that is Cossio.

The only medication I am on is truth, justice, and the American way.

Cossio said...

Self-proclaimed, huh?

I asked if you were the same, I never made a declaritive statement that you are.

And I never had ever said I was "a genius".

If I was really smart I'd stay out of trouble. I'd say I am too smart for my own good, that is more appropo.

WAIT !!! Maybe you are Anon pretending to be Anon, pretending to be Anon !