United States v. Bennitt , 74 M.J. 125 ( 2015 )

UNITED STATES, Appellee
v.
Timothy E. BENNITT, Private
U.S. Army, Appellant
No. 12-0616
Crim. App. No. 20100172
United States Court of Appeals for the Armed Forces
Argued December 10, 2014
Decided April 2, 2015
RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: Major Yolanda D. McCray Jones (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Jonathan F. Potter, Major
Jacob D. Bashore, Major Amy E. Nieman, and Captain Aaron R.
Inkenbrandt (on brief); Colonel Kevin Boyle.
For Appellee: Captain Carrie L. Ward (argued); Colonel John P.
Carrell, Lieutenant Colonel Amber J. Roach, Major Katherine S.
Gowel, Captain Kenneth W. Borgnino, and Captain Janae M. Lepir
(on brief); Captain Timothy C. Erickson.
Military Judge: Kwasi L. Hawks
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bennitt, 12-0616/AR
Judge RYAN delivered the opinion of the Court.
Pursuant to his pleas, a military judge sitting as a
general court-martial convicted Appellant of four specifications
of wrongful distribution of a controlled substance and three
specifications of wrongful use of a controlled substance in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912(a) (2006). Contrary to Appellant’s
plea, the military judge convicted Appellant of the involuntary
manslaughter of LK, in violation of Article 119, UCMJ.
Appellant was sentenced to a reduction to the grade of E-1,
forfeiture of all pay and allowances, confinement for a period
of seventy months, and a dishonorable discharge. The United
States Army Court of Criminal Appeals (CCA) affirmed the
findings and sentence. This Court subsequently set aside and
dismissed Appellant’s conviction for the involuntary
manslaughter of LK as legally insufficient. United States v.
Bennitt (Bennitt I), 72 M.J. 266, 267 (C.A.A.F. 2013) (holding
that “Appellant’s conduct was not an offense directly affecting
the person”). We reversed the CCA’s decision as to Appellant’s
sentence and returned the record of trial to the CCA for
sentence reassessment or a rehearing on the sentence. Id. at
272.
The CCA reassessed Appellant’s sentence, and reimposed the
same sentence Appellant had received before his appeal to this
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Court. United States v. Bennitt (Bennitt II), No. ACM 20100172,
2013 CCA LEXIS 838, at *4-5, 2013 WL 5588229, at *2 (A. Ct.
Crim. App. Sept. 25, 2013) (unpublished). The CCA explained
that “[a]lthough appellant now stands acquitted of involuntary
manslaughter, pursuant to Rule for CourtsMartial [sic]
1001(b)(4), LK’s death was directly related to appellant’s
conviction for oxymorphone distribution. Therefore, the
evidence underlying the dismissed charge was proper aggravation
evidence . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013
WL 5588229, at *1.
On a motion for reconsideration in light of United States
v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again
reassessed, and did not change, Appellant’s sentence.1 United
States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA
LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App.
Mar. 25, 2014) (unpublished). The CCA’s reasoning did change,
however. The CCA concluded that evidence of LK’s death was
admissible aggravation evidence because Appellant’s Article
1
We granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS
DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE
AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.
Because we hold that the CCA’s analysis included the erroneous
statement that Appellant was convicted of distribution to LK as
part of his Article 112a, UCMJ, conviction, we do not reach the
granted issue.
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112a, UCMJ, conviction of oxymorphone distribution on divers
occasions on or about February 14, 2009, included distribution
of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10,
2014 WL 1246764, at *3.
While the CCA enjoys broad discretion in reassessing a
sentence, Winckelmann, 73 M.J. at 15, 18, it cannot base its
reassessment on an erroneous statement of law. See United
States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005) (holding
that the lower court improperly relied on an erroneous view of
the law when reassessing the appellant’s sentence). The CCA
erred as a matter of law in its second reassessment when it
stated that Appellant was convicted of distribution of
oxymorphone to LK as part of his Article 112a, UCMJ, conviction.
Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at
*3. We therefore reverse the decision of the CCA and remand for
sentence reassessment or a sentence rehearing consistent with
this opinion.
I. FACTS
We described all of the facts surrounding the charged
events in our opinion in Bennitt I. 72 M.J. at 267-68. This
disposition requires special attention to the chronology of
events on the night LK died -- the evening of February 14 and
early morning of February 15, 2009.
Appellant gave two sworn statements to law enforcement,
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both of which were admitted as evidence to support the contested
Article 119, UCMJ, charge and specifications. In the first, he
testified that around 1:00 a.m. or 1:30 a.m. on February 15, he
picked up his girlfriend, LK, and her friend, TY, and brought
them back to his room on base. He stated that around 1:45 a.m.
he snorted an oxymorphone pill LK gave him; around 2:00 a.m. or
2:15 a.m., he left the room; he later returned and found LK and
TY asleep; around 3:00 a.m., Appellant laid down with them and
fell asleep; and at 4:30 a.m., he woke to find LK foaming at the
mouth and pale.
In his second statement, Appellant wrote that about 9:00
p.m. on February 14, he borrowed a soldier’s truck and drove to
meet LK. After purchasing pills and running other errands,
Appellant drove LK and TY to his barracks. Appellant stated
that upon returning to the barracks he gave pills to another
soldier, then took LK and TY to his room to watch a movie. He
admitted to crushing and snorting one pill then preparing a
second pill for LK and TY to snort. Shortly after they snorted
these pills, Appellant received a phone call from a friend
asking him to find some “weed.” He made a call then left his
room to search for marijuana. According to Appellant, he
returned to find LK and TY asleep on his bed, joined them for an
hour and a half, woke to find LK unresponsive, and called 911.
Appellant’s call log shows outgoing calls at 1:07 a.m. and
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United States v. Bennitt, 12-0616/AR
3:35 a.m. on February 15, and one incoming call at 1:11 a.m.
that lasted approximately two minutes. At trial, an EMT
testified that he received the 911 call about LK at 3:35 or 3:40
a.m. on February 15. TY testified at trial that she, Appellant,
and LK got to base at 11:17 p.m. on February 14.
In relevant part, the Government charged Appellant with
distribution of oxymorphone “on divers occasions between on or
about 14 February 2009 and on or about 15 February 2009,” a
violation of Article 112a, UCMJ, as well as involuntary
manslaughter of LK by “aiding or abetting her wrongful use
Oxymorphone and Alprazolam,” in violation of Article 119, UCMJ.
Appellant pleaded guilty to distribution of oxymorphone,
with the exception of the words “on divers occasions between”
and “and on or about 15 February 2009,” to which he pleaded not
guilty.2 During the providence inquiry, Appellant testified that
he distributed oxymorphone to three soldiers on February 14. He
did not testify that he distributed oxymorphone to LK.
Following the merits phase of the court-martial, the military
judge found Appellant guilty of distribution of oxymorphone “on
divers occasions” “on or about” February 14, 2009, but not
guilty of the excepted words “between” and “on or about 15
February 2009.” In relevant part, he also found Appellant
2
Appellant subsequently modified his plea to admit guilt on
divers occasions “on or about 14 February 2009.”
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United States v. Bennitt, 12-0616/AR
guilty of unlawfully killing LK “by aiding and abetting her
wrongful use of Oxymorphone” “between on or about 14 February
2009 and on or about 15 February 2009.”3 (Emphasis added.)
II. ARMY COURT OF CRIMINAL APPEALS SENTENCE REASSESSMENT
In its March 25, 2014, opinion on reconsideration in light
of Winckelman, the CCA stated that the Government’s theory at
trial was that the involuntary manslaughter charge was “a form
of aggravated distribution of oxymorphone,” and that “[t]he
evidence in this case . . . showed that on or about 14 February
2009, [A]ppellant distributed oxymorphone to . . . LK, and then
went further in facilitating LK’s use of the drug.” Bennitt
III, 2014 CCA LEXIS 188, at *6, *8, 2014 WL 1246764, at *2-3
(emphasis added). Based on the evidence at trial, Appellant’s
sworn statements, the providence inquiry testimony, and the
overlap of the time frames specified in the Article 112a, UCMJ,
distribution charge and the Article 119, UCMJ, involuntary
manslaughter charge set aside by this Court, the CCA concluded
that Appellant’s Article 112a, UCMJ, distribution conviction
“covers and includes his distribution to LK.” Bennitt III, 2014
CCA LEXIS 188, at *9, 2014 WL 1246764, at *2-3.
3
The military judge found Appellant not guilty of the excepted
words “and Alprazolam.”
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III. DISCUSSION
As a preliminary matter, we note that in Bennitt I, we held
Appellant’s conviction for involuntary manslaughter “is legally
insufficient because Appellant’s distribution of the controlled
substance was not an ‘offense . . . directly affecting the
person.’” 72 M.J. at 267 (quoting Article 119(b)(2), UCMJ).
Our use of the word “distribution” was a description of the
conduct underlying the involuntary manslaughter charge, not a
holding that Appellant’s Article 112a, UCMJ, conviction for
distribution of oxymorphone included distribution to LK -- a
matter which our opinion in Bennitt I did not address. While
Appellant no doubt did distribute oxymorphone to LK, as he
himself admitted, that “distribution” was presented as the means
by which he was guilty of the Article 119, UCMJ, manslaughter
offense, which this Court vacated. Contrary to the CCA’s
conclusion, the Article 112a, UCMJ, conviction did not include
distribution of oxymorphone to LK.
An accused has a right to be tried and “heard on the
specific charges of which he is accused.” United States v.
Dunn, 442 U.S. 100, 106 (1979). Though the CCA has significant
factfinding powers under Article 66, UCMJ, the CCA is “not free
to revise the basis on which a defendant is convicted simply
because the same result would likely obtain on retrial.” United
States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009) (quoting
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Dunn, 442 U.S. at 107). To that end, “an appellate court may
not affirm an included offense on ‘a theory not presented to
the’ trier of fact.” United States v. Riley, 50 M.J. 410, 415
(C.A.A.F. 1999) (quoting Chiarella v. United States, 445 U.S.
222, 236 (1980)); see also United States v. Standifer, 40 M.J.
440, 445 (C.M.A. 1994) (“If the evidence is sufficient to
establish an included offense, this Court may affirm the
included offense, provided that it does not do so on a theory
not presented to the trier of fact.”).
The CCA’s finding was based on “a theory not presented to
the trier of fact.” Riley, 50 M.J. at 415 (internal quotation
marks omitted). First, the Government did not present evidence
that Appellant gave oxymorphone to LK in support of the Article
112a, UCMJ, charge. Next, Appellant’s guilty plea to the
Article 112a, UCMJ, charge does not support distribution to LK
−− in pleading, he excepted the words “and on or about 15
February 2009,” to which he pleaded not guilty. Nor did
Appellant testify during the providence inquiry that he
distributed oxymorphone to LK. While the Government could have
gone forward on the merits to prove Appellant was guilty of the
excepted words, the Government did not do so. See United States
v. Hartsfeld, 18 C.M.A. 569, 570, 40 C.M.R. 281, 282 (1969)
(affirming a conviction despite an improvident plea because the
government proved the conduct during the merits phase).
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The record, particularly the Government’s opening
statement, reveals that the Government’s theory in the merits
phase was that Appellant was guilty of involuntary manslaughter,
in violation of Article 119, UCMJ, by means of aiding and
abetting LK’s use of oxymorphone. In pursuit of this, the
Government did present evidence -- most notably Appellant’s
second sworn statement -- that he distributed oxymorphone to LK;
however, the Government brought this evidence as support for the
Article 119, UCMJ, involuntary manslaughter charge, which this
Court set aside. See Bennitt I, 72 M.J. at 267.
Moreover, the CCA was bound by the military judge’s finding
that Appellant was not guilty of distribution on February 15.
The CCA can “affirm only such findings of guilty . . . as it
finds correct in law and fact,” Article 66(c), UCMJ, and “cannot
find as fact any allegation in a specification for which the
fact-finder below has found the accused not guilty.” United
States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003); see also
United States v. Smith, 39 M.J. 448, 451-52 (C.M.A. 1994),
overruled on other grounds by United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011) (“[A CCA] may not make findings of fact
contradicting findings of not guilty reached by the
factfinder.”). The military judge waited to pronounce his
findings for all of the charges and specifications until after
the conclusion of the merits trial for involuntary manslaughter.
10
United States v. Bennitt, 12-0616/AR
The military judge found Appellant guilty of distribution of
oxymorphone “on divers occasions” “on or about” February 14,
2009, but not guilty of the excepted words “between” and “on or
about 15 February 2009.” The effect of this finding is that
neither this Court nor the CCA is free to conclude that
Appellant’s conviction for that specification of the Article
112a, UCMJ, charge included distribution on February 15 -- even
if the record showed that he actually distributed on that day.4
Walters, 58 M.J. at 395.
Nor is the record legally sufficient to support a
distribution to LK on February 14, even if the Government had
intended to prove at trial distribution of oxymorphone to LK in
support of the Article 112a, UCMJ, conviction. In Appellant’s
initial sworn statement, he indicated multiple times,
unequivocally, that his relevant interactions with LK all
occurred on February 15, 2009. In Appellant’s second statement,
he recalled that “[s]hortly after” he, LK, and TY snorted the
oxymorphone, he made a call to look for marijuana, left his room
to try to locate some marijuana, then returned to his room and
4
Normally, the charge “on or about February 14, 2009” would
include the early morning hours of February 15, 2009, and
whether an action took place just before midnight or just after
midnight is usually insignificant. However, because Appellant
excepted the portions of his plea dealing with February 15, and
the military judge found Appellant not guilty of distribution on
February 15, in this case “on or about” cannot include actions
that took place on February 15.
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United States v. Bennitt, 12-0616/AR
fell asleep for “about an hour and a half.” Appellant’s call
logs, along with the EMT’s testimony, corroborate the timing
established in his second statement, and show that these calls
and the tragic interactions that resulted in the death of LK
took place on February 15. Finally, while TY testified that
she, Appellant, and LK arrived on base at 11:17 p.m. on February
14, nothing in her testimony suggests that she or LK took
oxymorphone on February 14. Together, this evidence is legally
insufficient to support the conclusion that Appellant’s
distribution to LK took place on February 14. See United States
v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000).
IV. CONCLUSION
We hold that the CCA erred as a matter of law in stating
that Appellant was convicted of distribution to LK as part of
his Article 112a, UCMJ, conviction. In so holding, we make no
statement on whether sentence reassessment rather than a
rehearing was appropriate, the admissibility of evidence of LK’s
death as aggravation evidence for the distribution charge, or
whether the reassessed sentence was also appropriate. The
decision of the United States Army Court of Criminal Appeals is
therefore reversed. The record is returned to the Judge
Advocate General of the Army for remand to the CCA for
reassessment of the sentence or rehearing in light of our
findings.
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United States v. Bennitt, NO 12-0616/AR
BAKER, Chief Judge (dissenting):
I respectfully dissent from this Court’s opinion concluding
that Appellant was not convicted of distribution of oxymorphone
to LK. This conclusion is contrary to the military judge’s
findings, the lower court’s findings, and the record in this
case. The majority’s conclusion is also contrary to this
Court’s long-standing practice interpreting the language “on or
about,” which, in this case, encompasses the early morning hours
of February 15 as well as February 14 for a specification
alleging “on or about February 14.” Therefore, the military
judge properly found Appellant guilty of distribution on or
about February 14, which language encompassed both the factual
possibility that Appellant provided LK the drug during the late
hours of February 14 or the early morning hours of February 15.
LK is the sixteen-year-old victim who died as a result of
Appellant’s distribution. Under specification 3 of Charge II,
the Government alleged the following:
In that [Appellant] did, at or near Fort Lewis,
Washington, on divers occasions between on or about 14
February 2009 and on or about 15 February 2009,
wrongfully distribute some amount of Oxymorphone, a
Schedule II controlled substance.
Appellant entered a plea of guilty to this specification as
follows:
To specification 3 Charge II: Guilty
United States v. Bennitt, No. 12-0616/AR
Except the words and figures “between” and “and
on or about 15 February 2009”; to the excepted
words and figures: Not Guilty;
To the Charge: Guilty
Thus, in substance, Appellant’s exceptions resulted in a plea to
a specification that would have appeared as follows: in that
Appellant did, at or near Fort Lewis, Washington, on divers
occasions between on or about 14 February 2009 and on or about
15 February 2009, wrongfully distribute some amount of
Oxymorphone, a Schedule II controlled substance.
Following the entry of Appellant’s pleas, the Government
proceeded on the merits. In his opening statement trial counsel
stated:
So, if you follow the drugs in this case, Your Honor, you
will find that, on 14 February 2009, that this accused
obtained essentially a truck-load of Opana and Alprazolam.
. . . And that [Appellant] on 14 February 2009,
[distributed those two drugs to several soldiers. He also,
though, Your Honor, [distributed] the Opana, we know for
certain, and probably the . . . Alprazolam, to [LK], in the
late hours of 14 February 2009, and the early morning hours
of 15 February 2009. And it is those two drugs in the very
possession of the accused on 14 February 2009, that killed
[LK].
During the trial, the prosecution offered, among other things,
Appellant’s sworn statement. The statement was admitted as
Prosecution Exhibit 27 and recites Appellant’s account of the
events during the day and into the late evening of February 14,
2009, during which he obtained several drugs and subsequently
distributed those drugs to several individuals including LK.
2
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Specifically, Appellant stated that around 9:00 p.m. on February
14, he borrowed a friend’s truck and proceeded to a location
where he purchased several oxymorphone pills. According to the
statement, about twenty minutes after procuring the drug, he, LK
and one of LK’s friends returned to his barracks. Appellant
then stated:
Once we got [to] the barracks I gave [S] his pills and then
I went back to my room. I put in a movie and we were
watching it. When we were watching the movie I crushed up
two of the pills that I had gotten for myself and snorted
them. . . . After I snorted the two pills I crushed up the
other pill and [LK] and her friend snorted it.
Finally, according to Appellant, he left the room, returned
later and fell asleep in the bed with the two girls. He awoke
at some point and found LK unresponsive.
At the close of the evidence, the military judge entered
the following finding to specification 3 of Charge II:
Of specification 3 of Charge II: Guilty;
Except the word “between” and except the words
and figures, “and on or about 15 February 2009.”
The military judge’s exceptions resulted in a finding of guilty
of wrongful distribution of oxymorphone “on divers occasions on
or about 14 February 2009.” On Appellant’s statement alone, the
military judge, sitting as the reasonable trier of fact in the
case, could have found that the distribution of oxymorphone to
LK occurred during the evening of the 14th.
3
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However, even if one were to conclude that it occurred
during the very early hours of the 15th, (the participants were
not keeping careful note of the time), it would still have been
considered “on or about” the 14th. In essence, the military
judge’s exception of the language “and on or about 15 February
2009” had no legal significance given the fact that the finding
included the “divers occasions” language and the “on or about 14
February” language. Thus, the record supports a finding in this
case that Appellant distributed oxymorphone to the victim LK “on
or about 14 February 2009.”
The qualifier, “on or about” heretofore has been used in
cases, like this one, where the exact time or date of an event
may not be known or within the recollection of the critical
witnesses, but nonetheless fairly orients the accused to the
offense charged. “‘On or about,’ however, are words of art in
pleading which generally connote any time within a few weeks of
the ‘on or about’ date.” United States v. Brown, 34 M.J. 105,
110 (C.M.A. 1992). “The words ‘on or about’ in pleadings mean
that ‘the government is not required to prove the exact date, if
a date reasonably near is established.’” United States v. Hunt,
37 M.J. 344, 347 (C.M.A. 1993) (quoting United States v.
Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987). “When a charge
employs ‘on or about’ language, the Government is not required
to prove the specific date alleged in the charge.” United
4
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States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999). Upon entry of
his pleas, Appellant did not except either the “divers
occasions” language or the “on or about” language as it
pertained to February 14, 2009. Similarly, the military judge
did not except those phrases when he entered his finding to
specification 3 of Charge II. The military judge used the date
to which the Appellant pleaded guilty knowing that in accordance
with this Court’s long-standing case law and military practice,
a conviction “on or about February 14” would cover the potential
variances in fact as to the precise moment on February 14 or 15
at which the drug was distributed to LK.
If, at the time of trial, there had been any question or
confusion on the part of the defense as to what specification 3
included, counsel had at least two remedies available. First,
prior to trial, the defense could have moved for a bill of
particulars under Rule for Courts-Martial (R.C.M.) 906(b)(6).
Alternatively, since this was a military judge-alone trial, the
defense could have requested special findings under R.C.M.
918(b). The defense did neither.
Finally, the majority concedes that the evidence of record
proves that Appellant distributed oxymorphone to the victim.
However, according to the majority, since this evidence was
“presented as the means by which he was guilty of the Article
119[(b)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
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919(b)(2) (2006)], . . . offense,” this resulted in a theory not
presented to the trier of fact on the Article 112a, UCMJ, 10
U.S.C. § 912a (2006), offense. United States v. Bennitt, __
M.J. __, __ (8) __ (C.A.A.F. 2015). This reasoning does not
make sense since the sole theory of the manslaughter offense was
the distribution to LK, which occurred “on or about” February
14. The majority buttresses its view with the statement that
“the Government did not present evidence that Appellant gave
oxymorphone to LK in support of the Article 112a, UCMJ, charge.”
Bennitt, __ M.J. at __ (9). I am not aware of authority that
requires the prosecution during the trial of the facts to
continually announce what evidence is being offered to support
individual offenses, and indeed the majority cites none. In
every criminal trial, the charges are presented, the evidence is
admitted, and the trier of fact returns a verdict. That is
exactly what happened in this case. Thus, it appears the
majority is substituting its own finding on the facts,
notwithstanding those entered by the military judge and the CCA,
and without identifying how as a matter of law either the
military judge or the CCA erred.1
1
The majority’s decision to reinterpret the meaning of “on or
about” and to reverse the CCA’s conclusion regarding the
distribution to the manslaughter victim in this case seems all
the more misplaced, because this Court did not grant this case
6
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As a result, I respectfully dissent.
on that basis and has not heard argument nor received briefs on
the issue.
7