United States v. Miller , 67 M.J. 385 ( 2009 )

UNITED STATES, Appellee
v.
Brandon I. MILLER, Private
U.S. Army, Appellant
No. 08-0580
Crim. App. No. 20060224
United States Court of Appeals for the Armed Forces
Argued February 25, 2009
Decided June 10, 2009
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Melissa E. Goforth Koenig (argued);
Lieutenant Colonel Mark Tellitocci and Major Bradley M. Voorhees
(on brief); Colonel Christopher J. O’Brien, Lieutenant Colonel
Steven C. Henricks, and Major Teresa L. Raymond.
For Appellee: Captain Patrick G. Broderick (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Captain
Philip M. Staten (on brief); Major Michael C. Friess.
Military Judge: Patrick J. Parrish
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, 08-0580/AR
Judge RYAN delivered the opinion of the Court:
This case presents the question 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.1 See
Article 79, UCMJ, 10 U.S.C. § 879 (2000) (“An accused may be
found guilty of an offense necessarily included in the offense
charged.”); Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2000) (“Any
reviewing authority . . . may approve or affirm . . . so much of
the finding as includes a lesser included offense.”). We hold
that 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.
I. Factual Background
The charge at issue in this appeal stems from conduct that
1
On Appellant’s petition, we granted review of the following
issue:
WHETHER AFTER FINDING THE EVIDENCE FACTUALLY
INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE
III AND ITS SPECIFICATION (RESISTING APPREHENSION),
THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING
OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT
PRESENTED TO THE TRIER OF FACT.
2
United States v. Miller, 08-0580/AR
occurred at Camp Red Cloud, South Korea, on March 11, 2005.
Early that morning, MPs were called to take custody of Appellant
from the Korean National Police (KNP), who had apprehended
Appellant for an alleged assault. The MPs arrived at the KNP
guard box at the gate of Camp Red Cloud and proceeded to take
Appellant into military custody. As the MPs went to place hand
irons on Appellant, he ran to the door of the room, but was
unable to leave because it was locked. Appellant struggled with
the MPs and members of the KNP -- hitting one KNP investigator
-- and was eventually subdued.
At Appellant’s subsequent court-martial, the panel
convicted him, contrary to his pleas, inter alia, of resisting
apprehension in violation of Article 95, UCMJ, 10 U.S.C. § 895
(2000).2 On appeal, the United States Army Court of Criminal
Appeals (CCA) found the evidence factually insufficient to prove
the resisting apprehension charge, as Appellant was already in
custody when the MPs came to the KNP guard box. United States
v. Miller, No. ARMY 20060224, slip op. at 4 (A. Ct. Crim. App.
Mar. 24, 2008). The CCA stated:
The panel convicted appellant of resisting
apprehension by Private First Class (PFC) ES, a
military police officer (MP) at the Korean National
2
Appellant does not challenge his convictions of unrelated
charges of going absent without leave, assaulting a
noncommissioned officer, and using provoking words in violation
of Articles 86, 91, and 117, UCMJ, 10 U.S.C. §§ 886, 891, 917
(2000), respectively.
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Police (KNP) “box” outside the gate of Camp Red Cloud
(CRC), Republic of Korea on 11 March 2005. Private
First Class ES, his partner, and Mr. H, a Korean
National Investigator, responded to a radio call to
take custody of appellant at the CRC gate. Upon their
arrival, appellant was in hand irons in the custody of
the KNPs. Once the hand irons were removed, PFC ES
testified that appellant “sprinted to the door[.]”
While the MPs continued their efforts to put the
accused in hand irons, he kept “trying to fight us”
and was “swinging his arms around . . . kept turning,
making it hard for [the MPs] to grab his arms” at
which time appellant hit Mr. H. The KNPs again put
appellant in custody until he was taken to the KNP
station later that night.
Based on these facts and the definitions
described above, at the time of the offense, the KNPs
had placed appellant in custody and were transferring
custody of appellant to the MPs. Consequently, the
evidence is factually insufficient and we cannot
affirm appellant’s conviction to resisting
apprehension. See United States v. Chavez, 6 M.J. 615
(A.C.M.R. 1978) (holding that because the guards
already apprehended the accused and had him in
custody, a conviction for resisting apprehension fails
for factual insufficiency[]).
Id. at 4 (first set of brackets and ellipsis in original).
The CCA, however, proceeded to find Appellant guilty of a
simple disorder under Article 134, UCMJ, as a lesser included
offense, asserting that this Court has:
long recognized that an appellate court may
disapprove a finding because proof of an
essential element is lacking or, as a result of
instructional errors . . . may substitute a
lesser-included offense for the disapproved
findings. This is true even if the lesser-
included offense was neither considered nor
instructed upon at the trial of the case.
United States v. McKinley, 27 M.J. 78, 79 (C.M.A.
1988) (emphasis added). . . .
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United States v. Miller, 08-0580/AR
The evidence presented at trial firmly
established that appellant’s conduct was prejudicial
to good order and discipline or service discrediting
and constituted a simple disorder under Article 134,
UCMJ. See United States v. Fuller, 54 M.J. 107, 112
(C.A.A.F. 2000) (holding evidence in a contested
trial failed to support maltreatment offense, but was
sufficient support for reviewing court to affirm a
violation of Article 134, UCMJ); United States v.
Augustine, 53 M.J. 95 (C.A.A.F. 2000) (holding
admissions during providence inquiry sufficient for
reviewing court to affirm a violation of Article 134,
UCMJ); United States v. Sapp, 53 M.J. 90 (C.A.A.F.
2000) (affirming a violation of the general article,
simple disorder, when insufficient evidence existed
to support the greater offense of violation of 28
U.S.C. § 2252 (a)(4)(A)). “Conduct is punishable
under Article 134 if it is prejudicial to good order
and discipline in the armed forces or is of a nature
to bring discredit upon the armed forces.” Fuller,
54 M.J. at 112. Appellant’s conduct was both, when
in the presence of the KNPs appellant hit Mr. H and
struggled with the MPs at the CRC gate. Furthermore,
“appellant was clearly on notice of this lesser-
included offense because every enumerated offense
under the UCMJ is per se prejudicial to good order
and discipline or service-discrediting.” Id.
(citing United States v. Foster, 40 M.J. 140, 143
(C.M.A. 1994)). As such, we affirm the lesser-
included offense of simple disorder.
Id. at 4-5 (emphasis in original).
II. Discussion
The threshold question is whether a simple disorder under
Article 134, UCMJ,3 was a lesser included offense of the
3
Elements of Article 134, clauses 1 and 2, are: (1) the accused
did or failed to do certain acts; and (2) under the
circumstances, the accused’s conduct was to the prejudice of
good order and discipline or was of a nature to bring discredit
upon the armed forces. Manual for Courts-Martial, United States
pt. IV, para. 60.b (2002 ed.) (MCM).
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violation of Article 95, UCMJ,4 in this case. Whether an offense
is a lesser included offense is a question of law we review de
novo. United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F.
2004); United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.
2002).
The Constitution requires that an accused be on notice as
to the offense that must be defended against, and that only
lesser included offenses that meet these notice requirements may
be affirmed by an appellate court. Jackson v. Virginia, 443
U.S. 307, 314 (1979) (“It is axiomatic that a conviction upon a
charge not made or upon a charge not tried constitutes a denial
of due process.”); In re Winship, 397 U.S. 358, 364 (1970)
(“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
charged.”); Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No
principle of procedural due process is more clearly established
than . . . notice of the specific charge, and a chance to be
heard in a trial of the issues raised by that charge . . . .”)
(emphasis added). “[A]ppellate courts are not free to revise
the basis on which a defendant is convicted simply because the
4
Elements of resisting apprehension under Article 95, UCMJ, are:
(1) a certain person attempted to apprehend the accused; (2) the
said person was authorized to apprehend the accused; and (3) the
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same result would likely obtain on retrial.” Dunn v. United
States, 442 U.S. 100, 107 (1979); see also Chiarella v. United
States, 445 U.S. 222, 236-37 (1980) (stating that the Court
would not affirm a conviction based on a theory not presented to
the jury). “To uphold a conviction on a charge that was neither
alleged in an indictment nor presented to a jury at trial
offends the most basic notions of due process.” Dunn, 442 U.S.
at 106.
Article 79, UCMJ, which provides that an accused “may be
found guilty of an offense necessarily included in the offense
charged,” is consonant with these constitutional principles, and
applies at both the trial and appellate levels. See Article 59,
UCMJ (allowing an appellate court to affirm a conviction to a
lesser included offense). In the explanation of Article 79,
UCMJ, the President advises that “[a] lesser offense is included
in a charged offense when the specification contains allegations
which either expressly or by fair implication put the accused on
notice to be prepared to defend against it in addition to the
offense specifically charged.” MCM pt. IV, para. 3.b(1).5
The notice requirement is met when “the elements of the
accused actively resisted the apprehension. MCM pt. IV, para.
19.b(1).
5
“Although MCM explanations of offenses are not binding on this
Court, they are generally treated as persuasive authority, to be
evaluated in light of this Court’s precedent.” United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citations omitted).
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lesser offense are a subset of the elements of the charged
offense.” Schmuck v. United States, 489 U.S. 705, 716 (1989);
see United States v. Weymouth, 43 M.J. 329, 331-34 (C.A.A.F.
1995) (analyzing lesser included offenses in the military under
the Schmuck test). An accused is “by definition on notice” of a
lesser included offense “because it is a subset of the greater
offense alleged.” United States v. Medina, 66 M.J. 21, 27
(C.A.A.F. 2008).
Appellant argues that, in this case, simple disorder is not
an offense necessarily included in resisting apprehension under
the Schmuck test, because Article 134, UCMJ, has an element not
present in Article 95, UCMJ. We agree that Article 134, UCMJ,
clauses 1 and 2 include the element that, in addition to doing
or failing to do a certain act, “under the circumstances, the
accused’s conduct was to the prejudice of good order and
discipline or was of a nature to bring discredit upon the armed
forces” -- an element not contained in the textual exposition of
Article 95, UCMJ.
To be sure, language in United States v. Foster and its
progeny suggests that a charged violation of an enumerated
article, without more, provides sufficient notice of the element
of prejudice to good order and discipline or service
discrediting conduct. See Foster, 40 M.J. 140, 143 (C.M.A.
1994) (stating that an accused is on notice of an Article 134,
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UCMJ, lesser included offense because every enumerated offense
under the UCMJ is “per se” prejudicial to good order and
discipline or service discrediting); see also United States v.
Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000) (“[E]very enumerated
offense under the UCMJ is per se prejudicial to good order and
discipline or service-discrediting.”); United States v. Sapp, 53
M.J. 90, 92 n.2 (C.A.A.F. 2000) (“[T]he elements of prejudice to
good order and discipline and discredit to the armed forces are
implicit in every enumerated offense.”); United States v.
Britton, 47 M.J. 195, 198 (C.A.A.F. 1997) (“[A]n offense under
Article 134 can be a lesser-included offense of an offense under
an enumerated Article, notwithstanding the requirement under
Article 134 to prove that the conduct was prejudicial or
service-discrediting.”).
But as our opinion last term in Medina made clear, the
principle of fair notice mandates that “an accused has a right
to know to what offense and under what legal theory” he will be
convicted and that a lesser included offense meets this notice
requirement if “it is a subset of the greater offense alleged.”
66 M.J. at 26-27. This precedent is consistent with the
Constitution and Supreme Court precedent regarding due process.
Id. at 24 (citing Schmuck, 489 U.S. at 716); see also United
States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008) (noting that
“[t]o satisfy the due process requirements of the Fifth
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Amendment, the Government must prove beyond a reasonable doubt
every element of the charged offense” (citing In re Winship, 397
U.S. at 364)). In contrast, the above cited language from
Foster and its progeny is at odds with these principles. To the
extent those cases support the proposition that clauses 1 and 2
of Article 134, UCMJ, are per se included in every enumerated
offense, they are overruled.
Article 134, UCMJ, is not an offense necessarily included
in Article 95, UCMJ.6 Consequently, the CCA was not authorized
to affirm a finding of guilt to a simple disorder under Article
134, UCMJ. See United States v. Riley, 50 M.J. 410, 415
(C.A.A.F. 1999) (“An appellate court may not affirm an included
offense on ‘a theory not presented to the’ trier of fact.”
(quoting Chiarella, 445 U.S. at 236)).
The decision of the United States Army Court of Criminal
Appeals is reversed. The finding of guilty of Charge III and
6
Our opinion in Medina also noted that when comparing the
elements of two offenses reveals that one offense is not
necessarily a lesser included offense of the other, the
requirement of notice to an accused may be met if the charge
sheet “make[s] the accused aware of any alternative theory of
guilt.” Medina, 66 M.J. at 27; see also MCM pt. IV, para.
3.b.(1) (“The notice requirement may also be met, depending on
the allegations in the specification, even though an included
offense requires proof of an element not required in the offense
charged.”). In this case, the charged offense as presented to
the members did not reference the elements of prejudice to good
order or service discrediting conduct such that the
specification would have put Appellant on notice of Article 134,
UCMJ, as a lesser included offense.
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its specification are set aside and Charge III is dismissed.
The sentence is set aside and the case remanded to the United
States Army Court of Criminal Appeals for sentence reassessment
or to order a rehearing on sentence.
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