United States v. Private E1 RANDY C. HERNANDEZ ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc 1
The UNITED STATES OF AMERICA, Petitioner
v.
Colonel GREGORY A. GROSS, Military Judge, Respondent
Private E1 RANDY C. HERNANDEZ, Real Party in Interest
ARMY MISC 20140293
Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
Gregory A. Gross, Military Judge
For Petitioner: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley,
JA; Major Kenneth W. Borgnino, JA; Captain Janae M. Lepir, JA (on petition for
extraordinary relief in the nature of a writ of mandamus); Colonel John P. Carrell,
JA; Lieutenant Colonel James L. Varley, JA; Major Kenneth W. Borgnino, JA (on
reply to real party in interest’s answer to the petition for extraordinary relief and on
motion for en banc reconsideration of the denial of the petition for extraordinary
relief).
For Real Party in Interest: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F.
Potter, JA; Major Frank E. Kostik, JA; Captain Aaron R. Inkenbrandt, JA (on real
party in interest’s answer to the petition for extraordinary relief).
28 August 2014
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OPINION OF THE COURT AND ACTION
ON PETITION FOR EXTRAORDINARY RELIEF IN THE
NATURE OF A WRIT OF MANDAMUS
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HAIGHT, Judge:
In the general court-martial of Private (E-1) Randy C. Hernandez, real party
in interest, the government petitioned this court for extraordinary relief in the nature
of a writ of mandamus. Specifically, the government requested this court order the
military judge “to reverse his ruling that the defense of Mistake of Fact as to Age
1
Judge MORAN and Judge BORGERDING took final action in this case while on
active duty.
HERNANDEZ – ARMY MISC 20140293
applies to Charge II and its specification” (sodomy with a child who had not attained
the age of 16 in violation of Article 125, Uniform Code of Military Justice, 10
U.S.C. § 925 [hereinafter UCMJ]). A panel of this court concluded the Petitioner-
government had not met its burden with respect to the appropriateness as to the
issuance of the requested writ. Then, the government moved for reconsideration en
banc of the denial of the petition for extraordinary relief in the nature of a writ of
mandamus.
This court adopted the suggestion for reconsideration en banc and granted the
motion to reconsider.
Upon reconsideration, we grant the government’s petition for extraordinary
relief, but do so in the form of a writ of prohibition.
BACKGROUND
The accused was charged with sexual assault of a child, sexual abuse of a
child, and sodomy with a child in violation of Articles 120b and 125, UCMJ. The
accused filed a pretrial motion asking the military judge to instruct the future panel
that a reasonable mistake of fact as to age is a defense to offenses with children
under Article 125, just as it is for offenses with children under Article 120b. The
military judge ruled that particular defense is not applicable to offenses under
Article 125 and based his decision on United States v. Wilson, 66 M.J. 39, 40
(C.A.A.F. 2008) (expressly holding “[t]here is no mistake of fact defense available
with regard to the child’s age in the article 125, UCMJ, offense of sodomy with a
child under the age of sixteen”). The accused ultimately elected to contest his
offenses before the military judge alone.
After the presentation of evidence, the military judge entered findings of not
guilty to the specifications alleging sexual assault of a child and sexual abuse of a
child (Charge I), and then announced:
It should be obvious to everyone that I did not enter
a finding as to Charge II and its Specification [Sodomy].
Regarding Charge I, I find that the defense proved by a
preponderance of the evidence the defense of mistake of
fact as to age; that is why I found the accused not guilty.
I’ve determined to reconsider my ruling as to the
defense’s motion that mistake of fact as to age should
apply to Charge II and its Specification. I have
determined that [it] does apply and I find that the defense
proved the defense of mistake of fact as to age by a
preponderance of the evidence.
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HERNANDEZ – ARMY MISC 20140293
I find that the government proved the elements of
sodomy beyond a reasonable doubt, but as I said, the
defense proved the defense of mistake of fact by a
preponderance of the evidence. I am prepared to announce
a finding of not guilty to Charge II and its Specification;
however, before I do that, I will allow the government
time to file an extraordinary writ challenging my ruling on
the applicability of the mistake of fact with regards to
sodomy.
The government availed itself of the opportunity provided by the military
judge and sought the suggested writ.
DISCUSSION
As the government asks the court to prevent the military judge from applying
the defense of mistake of fact as to age to the offense of sodomy with a child under
the age of 16, charged as a violation of Article 125, UCMJ, we will more
appropriately address this petition as one for a writ of prohibition, not its
counterpart, a writ of mandamus. We apply the same test for a writ of prohibition as
for a writ of mandamus. See generally Ctr. for Constitutional Rights v. United
States and Colonel Denise Lind, 72 M.J. 126 (C.A.A.F. 2013) (United States Court
of Appeals for the Armed Forces (CAAF) dismisses writ-appeal in the form of
request for writ of mandamus and/or prohibition).
The issuance of a writ of prohibition is the process by which a superior court
prevents “an inferior court or tribunal possessing judicial or quasi-judicial powers
from exceeding its jurisdiction in matters over which it has cognizance or usurping
matters not within its jurisdiction to hear or determine.” Black’s Law Dictionary
1212 (6th ed. 1990) (citing The Florida Bar, 329 So.2d 301, 302 (Fla. 1974)). A
writ of prohibition is to “prevent usurpation of judicial power” and to confine courts
to the proper exercise of their power and authority. Id.A writ of prohibition, like mandamus, is a “drastic instrument which should
be invoked only in truly extraordinary situations.” United States v. Labella, 15 M.J.
228, 229 (C.M.A. 1983). “All courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” All Writs Act, 28 U.S.C. § 1651(a) (2012);
see also United States v. Denedo, 556 U.S. 904, 911 (2009). “Military courts, like
Article III tribunals, are empowered to issue extraordinary writs under the All Writs
Act.” LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013) (quoting Denedo,
556 M.J. at 911). To prevail on a request for a writ, the petitioner must show that:
“(1) there is no other adequate means to attain relief; (2) the right to issuance of the
writ is clear and undisputable; and (3) the issuance of the writ is appropriate under
3
HERNANDEZ – ARMY MISC 20140293
the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing
Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). We
find the government has met all three prongs.
No other adequate means to attain relief
The military judge determined the government had proven the elements of
sodomy under Article 125 beyond a reasonable doubt but also ruled that the mistake
of fact as to age defense applies to the Article 125 offense and is “prepared to
announce a finding of not guilty” to that charge. Thus, if the defense does not
apply, then its application would be a product of judicial overreaching and could
“deny the [g]overnment the rightful fruits of a valid conviction.” United States v.
Booker, 72 M.J. 787, 807 (N.M. Ct. Crim. App. 2013) (quoting Will v. United States,
389 U.S. 90, 97-98 (1967)). More pointedly, the application of an inapplicable
defense “entails a high probability of failure of prosecution—a failure the
government could not then seek to remedy by appeal or otherwise—[and] constitutes
the kind of extraordinary situation in which we are empowered to issue” a writ.
United States v. Wexler, 31 F.3d 117, 129 (3d Cir. 1994). The government has no
means to challenge an actual and entered finding of not guilty. Thus, the
government has no other adequate means to attain relief.
Right to issuance of the writ is clear and indisputable
In Wilson, our superior court expressly and specifically held “there is no
mistake of fact defense available with regard to the child’s age in the Article 125,
UCMJ, offense of sodomy with a child under the age of sixteen.” 66 M.J. at 40.
Importantly, Wilson was decided after Lawrence v. Texas, 539 U.S. 558 (2003), and
with explicit acknowledgment that the criminal nature of sodomy may solely depend
upon the fact of age. Regardless of the fact that age is the indispensable factor that
makes the charged conduct criminal in cases of non-forcible sodomy with a minor,
our superior court, after an exhaustive analysis of statutory construction and
legislative history of both Articles 120 and 125, determined there is no mens rea
requirement with respect to the age of the child for Article 125 offenses. Wilson, 66
M.J. at 46.
The version of Article 125 analyzed in Wilson is the same version under
which the accused was charged and prosecuted. We highlight, as CAAF did in
Wilson, that any harmonization of the legislative scheme between Articles 120 and
125, or creation of a mistake of fact defense is to be accomplished by the
appropriate policymakers, the legislature or the President, but not by the judiciary.
66 M.J. at 45-47. Therefore, this question is one of simply following the law.
Whether or not public policy or perception has changed, a military court must follow
the “precedent-making decision[s]” of its superior courts in the absence of a
4
HERNANDEZ – ARMY MISC 20140293
superseding statute or intervening decision by a court of a higher rank. See United
States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996) (citation omitted).
The military judge based his ruling upon the fact that Article 120 has been
amended after Wilson and upon the concept that “ambiguity should inure to the
benefit of the accused.” First, we readily reject any notion that Article 120b (Rape
and Sexual Assault of a Child) somehow preempts or repeals by implication Article
125 (Sodomy). Second, there is no ambiguity of meaning or definition; rather, a
defense applies to one offense, but does not to another. A difference in application
of defenses to overlapping misconduct, e.g., the defenses of marriage or consent, is
neither unheard of nor legally infirm. 2 Moreover, as recently reminded by our
superior court, we have “no license to generate a statutory conflict where none
exists. . . .” United States v. McPherson, __ M.J. __, slip op. at 7 (C.A.A.F. 21 Aug.
2014). However appealing the principles of lenity may be to the military judge in
this case, that very argument, as espoused by Judge Baker in his dissent to Wilson,
was rejected by the majority. 66 M.J. at 51-52 (Baker, J., dissenting). Both the
military judge and this court are bound by that rejection. 3
Wilson has not been overturned, modified, or distinguished by CAAF. At the
time of appellant’s conduct, Article 125, UCMJ, had not changed. 4 Thus, we find
the government's right to issuance of the writ is clear and indisputable.
2
The overlap of proscribed conduct by Article 125 and other articles is nothing new.
We note that Chief Judge Effron, in his dissent to Wilson, identified that crimes
involving children always have and still would include sodomitic acts, whether
charged pre-2007 under Article 134 as indecent acts with a child or charged post-
2007 under Article 120 as lewd behavior or sexual contact with a child. 66 M.J. at
47-51 (Effron, C.J., dissenting).
3
Regarding our colleague’s concurrence in part and dissent in part, whether the
analytical framework is one of specific over general, primacy-recency, preemption,
or repeal by implication, we do not believe that Congress, whether by its action or
inaction, has legislated Article 125 out of viability or even limited its application to
solely crimes of bestiality. Furthermore, we make no decision at this time whether
or not it is “impossible” to convict someone under the current—recently modified—
version of Article 125 for engaging in non-forcible sodomy with a child unable to
provide valid legal consent.
4
Article 125 was recently amended. See National Defense Authorization Act for
Fiscal Year 2014, Pub. L. No. 113-66, § 1707, 127 Stat. 672, 961 (2013). A defense
of mistake of fact as to age is still not provided.
5
HERNANDEZ – ARMY MISC 20140293
Appropriate under the circumstances
The final issue is whether issuance of a writ is appropriate under the
circumstances of this case. Even when the petitioner has shown there is no other
adequate means to obtain relief and that its right to the writ is clear and
indisputable, “the issuance of a writ is ‘largely discretionary.’” United States v.
Higdon, 638 F.3d 233, 245 (3d Cir. 2011) (quoting Hahnemann Univ. Hosp. v.
Edgar, 74 F.3d 456, 461 (3d Cir. 1996)). Accordingly, a panel of this court initially
declined to exercise that discretion because of the unusual procedural posture of a
judge declining to enter findings. 5 Upon reconsideration en banc, this court now
exercises its discretion to prohibit the military judge from “overrid[ing] Congress’
policy decision, articulated in a statute, as to what behavior should be prohibited.”
United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010) (quoting United States v.
Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001)); see also Badaracco v.
Comm’r of Internal Revenue, 464 U.S. 386, 398 (1984) (“Courts are not authorized
to rewrite a statute because they might deem its effects susceptible of
improvement.”).
Our superior court has sanctioned issuance of a writ to “confine an inferior
court to a lawful exercise of its prescribed jurisdiction.” Labella, 15 M.J. at 229
(quoting Dettinger v. United States, 7 M.J. 216, 220 (C.M.A. 1979)). However,
where a military judge’s decision is within his discretion, the decision “must amount
to more than even gross error; it must amount to a judicial usurpation of power, or
be characteristic of an erroneous practice that is likely to recur.” Id. (internal
quotation marks and citations omitted). Although CAAF has not specifically
sanctioned issuance of a writ where a military judge refuses to “abide by controlling
precedent,” other courts have approved the appropriateness of a writ under such
circumstances. Higdon, 638 F.3d at 246; see also Wexler, 31 F.3d at 129. As we
held above, the military judge’s action in applying the mistake of fact as to age
defense to the offense of sodomy with a child under the age of 16 was not a decision
within his authority to make. Thus it equates to a judicial usurpation of power.
CONCLUSION
We conclude the government has shown that issuance of a writ is appropriate
under the unique facts of this case. The petition for extraordinary relief is granted in
5
This opinion involves a situation where the military judge acted outside his
authority and in contravention of controlling precedent by our superior court. This
opinion should not be read as an encouragement to military judges to decline to
decide issues within their authority or to countenance procedural situations like this
in the hopes that this court will decide issues for them as the trial progresses.
6
HERNANDEZ – ARMY MISC 20140293
the form of a writ of prohibition. Consistent with Wilson, the defense of mistake of
fact as to age does not apply to offenses charged under Article 125. We remand for
additional proceedings consistent with this opinion.
Chief Judge PEDE, Senior Judge TOZZI, Senior Judge LIND, Senior Judge
COOK, Judge MORAN, Judge TELLITOCCI, Judge CAMPANELLA, Judge
CELTNIEKS, Judge PENLAND, and Judge BORGERDING concur.
KRAUSS, Judge, concurring in part and dissenting in part:
“When two criminal statutes arguably apply to the same conduct, the narrower
statute, as a rule, occupies the field.” United States v. Cotoia, 785 F.2d 497, 502
(4th Cir. 1986) (citing Busic v. United States, 446 U.S. 398, 406 (1980) (“[A] more
specific statute will be given precedence over a more general one, regardless of their
temporal sequence.”)).
I concur with the majority opinion but write separately to address the final
step necessary to fully and properly resolve the matter at hand.
When faced with a conundrum such as that offered by the overlapping statutes
at issue here, the liberty interest of the individual person is superior to that of the
interest in prosecutorial convenience. When resolving the competition between two
Supreme Court precedents, one that endorses prosecutorial discretion, the other
endorsing lenity; lenity is the better approach. See United States v. LaPorta,
46 F.3d 152, 156-57 (2d Cir. 1994); Cotoia, 785 F.2d at 502; United States v.
Olinger, 759 F.2d 1293, 1299-1300 (7th Cir. 1985). Compare Laporta, 46 F.3d at
156-57, with Bobb v. Attorney General of the United States, 458 F.3d 213, 222-24
(3d Cir. 2006) (each addressing interplay between United States v. Batchelder, 442
U.S. 114 (1979) and Busic, 446 U.S. 398). The principle of statutory interpretation
favoring enforcement of the specific over a more general statute criminalizing the
same misconduct serves to resolve this question in favor of the accused soldier. See
generally Busic, 446 U.S. at 406; Corley v. United States, 556 U.S. 303, 316 (2009)
(applying Busic); LaPorta, 46 F.3d at 156-57; Cotoia, 785 F.2d 497, 502.
The choice is stark: Under a statute passed in 2012, specifically intended to
comprehensively cover acts of sexual misconduct with children in particular, the
soldier here is not guilty. UCMJ art. 120b. Under a statute passed in 1950, intended
to cover any and all “unnatural acts of carnal copulation,” the soldier here is guilty
and subject to 20 years confinement. UCMJ art. 125; Manual for Courts-Martial,
United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 51.e. This for committing the
same exact act. Under circumstances such as these, Article 125 is no longer a viable
charge for the misconduct here alleged. To avoid piecemeal litigation on the matter,
that charge should be dismissed.
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HERNANDEZ – ARMY MISC 20140293
The judge was headed in the right direction when addressing the ambiguity in
the law created by the competing statutes at issue. The government indeed properly
framed the question as one requiring application of the more specific statute over the
more general, advocating that Article 125, UCMJ, is more specific and therefore the
one the government is required to pursue. Rather than continue straight along the
road of resolution described above, the judge took up the defense’s argument,
offered in the same spirit, but ultimately serving as a distraction from the
fundamental principle of statutory interpretation available for the resolution of such
problems. See Corley, 556 U.S. at 316. As a matter of law, the result is the same as
that reached by the judge below, the method a bit different. 6
Congress promulgated Article 120b, UCMJ, to comprehensively cover sexual
offenses against children and broadened the definitions of sexual acts to effectively
cover acts of sodomy. See MCM, UCMJ art. 120b analysis at A23-16. Whereas
Articles 120 and 125, UCMJ, used to be compatible, each criminalizing different
sexual acts, there is now a conflict in that Article 120b includes the same acts of
sodomy covered by Article 125. Though the government took the right approach, its
conclusion was incorrect. Because Article 120b comprehensively defines the array
of sexual activity with children to be criminal while Article 125 makes any and all
acts of sodomy with anyone and anything criminal, the former is specific, the latter
general. The specificity of Article 120b is enhanced by the fact that Congress
provided an affirmative defense by which an accused is relieved of any criminal
liability for an act of consensual sodomy, whereas an accused suffers strict criminal
liability under Article 125. 7 Under such circumstances, application of the rule of
6
To hold otherwise would violate not only the principle preferring enforcement of
the specific over a general statute but would also run afoul of the principle that “‘[a]
statute should be construed so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant . . . .’” Corley, 556 U.S. at
314 (citing Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoting 2A N. Singer, Statutes
and Statutory Construction § 46.06, pp. 181–186 (6th ed. 2000)); see also Montclair
v. Ramsdell, 107 U.S. 147, 152 (1883). To read Article 125 as trial counsel
contended in this case would render the Article 120b provisions relative to sodomy
superfluous - an outcome that warrants enforcement of Article 120b over Article
125. See, e.g., id.; LaPorta, 46 F.3d at 156-57. Cf. Bobb, 458 F.3d at 224 (Third
Circuit apparently acknowledging the validity of LaPorta yet arguably restricting
application of this principle holding that “the government is required to proceed
under a specific statute only if proceeding under a general statute would render the
specific statute superfluous. A statute is rendered superfluous only if a general
statute can cover every possible circumstance covered by the specific.”).
7
Effective January 2014, Congress repealed consensual sodomy as a crime under
Article 125, UCMJ, and promulgated a new forcible sodomy statute. See National
(continued . . .)
8
HERNANDEZ – ARMY MISC 20140293
lenity and its essential corollary seems quite plain. See United States v. Bass,
404 U.S. 336, 347-48 (1971) (“‘[W]hen choice has to be made between two readings
of what conduct Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in language that is
clear and definite’”) (quoting United States v. Universal C.I.T. Corp., 344 U.S. 218,
221-22 (1952)); see also LaPorta, 46 F.3d at 157; Busic, 446 U.S. at 406; Simpson v.
United States, 435 U.S. 6, 15-16 (1978); United States v. Jones, 471 F.3d 478, 483
(3d Cir. 2006).
I otherwise concur with the majority decision.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
ClerkofofCourt
Court
(. . . continued)
Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1707,
127 Stat. 672, 961 (2013). Thus, it is now impossible for a soldier to be convicted
of consensual sodomy with a child under Article 125 and perfection of the specific
Article 120b consensual sodomy offense with concomitant affirmative defense is
complete. No longer must we resort to canons of statutory interpretation to properly
enforce the law and protect the accused from unjust conviction and punishment. The
problem now that the new Article 125 effectively mirrors specific provisions of
Articles 120 and 120b dealing with forcible acts is one we’ll have to deal with when
and if it comes up. For the present case, the issue is restricted to acts of consensual
sodomy with children between the ages of 12 and 16.
9