United States v. Ronghi , 2004 CAAF LEXIS 609 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Frank J. RONGHI, Staff Sergeant
U.S. Army, Appellant
No. 03-0520
Crim. App. No. 20000635
United States Court of Appeals for the Armed Forces
Argued February 11, 2004
Decided June 30, 2004
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on brief); Captain Terri J. Erisman.
For Appellee: Captain Mark A. Visger (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Captain
Charles C. Choi (on brief).
Military Judge: Kenneth H. Clevenger
This opinion is subject to editorial correction before final publication.
United States v. Ronghi, No. 03-0520/AR
Judge GIERKE delivered the opinion of the Court.
Congress passed a bill authorizing the court-martial
punishment of confinement for life without eligibility for
parole (LWOP) on November 6, 1997.1 The President signed that
bill into law on November 18, 1997.2 However, the President did
not amend the Manual for Courts-Martial to incorporate LWOP
until April 11, 2002.3 The issue in this case is whether LWOP
was an authorized court-martial punishment for the crime of
premeditated murder during the period between enactment of the
LWOP statute and the Manual’s revision. We conclude that the
statute creating LWOP authorized that punishment for
premeditated murder offenses committed after November 18, 1997.
Background
Appellant was deployed with the 82d Airborne Division in
Kosovo on January 13, 2000, when he committed the crimes that
resulted in his sentence to LWOP. As aptly described by the
government, Appellant “took advantage of the trust, respect, and
kindness” that eleven-year-old Merita Shabiu showed to American
soldiers. “Appellant led her to a dark and deserted, filthy,
1
National Defense Authorization Act for Fiscal Year 1998, Pub.
L. No. 105-85, § 581, 111 Stat. 1629, 1759 (1997) (codified at
10 U.S.C. § 856a (2000)).
2
Signing Statement, 33 Weekly Comp. Pres. Doc. 1861 (Nov. 18,
1997), reprinted in 1997 U.S.C.C.A.N. 2707.
3
Exec. Order No. 13,262, 67 Fed. Reg. 18,773 (April 17, 2002).
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trash-strewn basement where he indecently assaulted, forcibly
anally sodomized, and murdered with premeditation, this innocent
child victim.”
As a result of these brutal acts, Appellant pled guilty to
and was found guilty of premeditated murder, indecent acts with
a child under 16 years of age, and forcible sodomy of a child
under 16 years of age, in violation of Articles 118, 134, and
125 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C.
§§ 918, 934, 925 (2000). Appellant agreed to plead guilty under
a pretrial agreement that provided for a non-capital referral.
At trial, both the defense counsel and Appellant personally
agreed that the maximum authorized punishment included LWOP.
On August 1, 2000, a court-martial panel of officer members
sentenced Appellant to LWOP, a dishonorable discharge,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority approved the
sentence as adjudged, and the Army Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.4
We granted review to determine whether LWOP was an authorized
court-martial punishment for the crime of premeditated murder on
the date of Appellant’s offenses.5
4
United States v.Ronghi, No. ARMY 20000635 (A. Ct. Crim. App.
May 27, 2003).
5
See United States v. Ronghi, 59 M.J. 167 (C.A.A.F. 2003) (order
granting review).
3
United States v. Ronghi, No. 03-0520/AR
Discussion
“It is well established that, absent a clear direction by
Congress to the contrary, a law takes effect on the date of its
enactment.” United States v. Pritt, 54 M.J. 47, 50 (C.A.A.F.
2000) (quoting Gozlon-Peretz v. United States, 498 U.S. 395, 404
(1991)). An examination of the applicable statutes reveals that
Congress authorized LWOP as a sentence for any premeditated
murder committed from the day after its enactment forward.
Article 56a Authorized LWOP for Premeditated Murder Offenses
Committed Starting the Day After Its Enactment
Article 56a(a) of the UCMJ provides, “For any offense for
which a sentence of confinement for life may be adjudged, a
court-martial may adjudge a sentence of confinement for life
without eligibility for parole.” 10 U.S.C. § 856a(a) (2000).
The statute that added this language to the UCMJ also provided
that Article 56a “shall be applicable only with respect to an
offense committed after the date of the enactment of this Act.”
Pub. L. No. 105-85, § 581(b), 111 Stat. at 1759. That date of
enactment was November 18, 1997, when the President signed it
into law.
When Congress adopted Article 118, it provided only two
authorized sentences for the offenses of premeditated murder and
felony murder: “death or imprisonment for life.” Art. 118,
UCMJ; 10 U.S.C. § 918 (2000). When it adopted Article 56a,
Congress plainly intended to authorize LWOP as a third available
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sentence for a premeditated murder that occurred after November
18, 1997. Thus, absent some other statutory provision limiting
LWOP’s availability, it was an authorized sentence when
Appellant committed his offenses on January 13, 2000.
The 2000 Manual for Courts-Martial
Did Not Conflict with the LWOP Statute
For most of the UCMJ’s punitive articles, the President
plays a role in determining the maximum authorized punishment.
Article 56 provides, “The punishment which a court-martial may
direct for an offense may not exceed such limits as the
President may prescribe for that offense.” Art. 56, UCMJ, 10
U.S.C. § 856 (2000). Article 18 similarly authorizes the
President to prescribe “limitations” on the punishments adjudged
by general courts-martial. Art. 18, UCMJ, 10 U.S.C. § 818(2000). The Supreme Court has upheld the constitutionality of
this general delegation of Congress’s “authority to define
criminal punishments” for military offenses. Loving v. United
States, 517 U.S. 748, 768 (1996). The President has executed
this delegated authority by establishing maximum punishments in
Part IV of the Manual for Courts-Martial.
The 2000 edition of the Manual for Courts-Martial, which
governed Appellant’s case,6 provided that the maximum punishment
6
The 2000 Manual incorporated the National Defense Authorization
Act for Fiscal Year 2000’s UCMJ amendments and Executive Order
13,140’s amendments to the Manual. 2000 Manual at Preface. The
National Defense Authorization Act for Fiscal Year 2000, which
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for premeditated murder was “death.” Manual for Courts-Martial,
United States, Pt. IV, para. 43.e(1) (2000 ed.) [hereinafter
2000 Manual]. The same Manual provision noted that the
mandatory minimum punishment for premeditated murder was
“imprisonment for life.” Id. Because LWOP is a lesser
punishment than the maximum (death), the Manual’s maximum
sentence provision did not conflict with the congressionally-
authorized sentence of LWOP in a premeditated murder case.
Additionally, the 2002 executive order that amended the
Manual for Courts-Martial to incorporate LWOP indicated that the
punishment “shall only apply to offenses committed after
November 18, 1997.” Exec. Order 13,262 § 6.b, 67 Fed. Reg.
18,773, 18,779 (April 11, 2002). Thus, the executive order
itself recognized LWOP’s availability as an authorized sentence
at the time of Appellant’s offenses.
Another presidential limitation on court-martial sentencing
authority is Rule for Courts-Martial (R.C.M.) 1003, which
provides an exclusive list of the kinds of punishments that a
court-martial may impose. The 2000 Manual’s version of R.C.M.
1003 did not specifically mention LWOP. Rather, the 2000
is not relevant to this appeal, was enacted on October 5, 1999.
Pub. L. No. 106-65, 113 Stat. 512 (1999). Executive Order
13,140 was signed on October 6, 1999, and generally took effect
on November 1, 1999. See Exec. Order 13,140 § 4, 64 Fed. Reg.
55,115, 55,120 (Oct. 12, 1999).
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United States v. Ronghi, No. 03-0520/AR
Manual’s version of R.C.M. 1003, like its predecessors,
authorized “confinement” as a form of punishment without
addressing the term of confinement at all. But R.C.M. 1003
nevertheless allowed LWOP, because it is not a new form of
punishment, but simply a longer term of confinement than
military law had previously allowed a court-martial to adjudge.7
In State v. Allen, 488 S.E.2d 188 (N.C. 1997), the North
Carolina Supreme Court faced a similar issue. Under North
Carolina law, premeditated murder is punishable by only death or
life imprisonment without parole. N.C. Gen. Stat. § 14-17(2003). The North Carolina Constitution provides:
The following punishments only shall be known to the
laws of this State: death, imprisonment, fines,
suspension of jail or prison term with or without
conditions, restitutions, community service,
restraints on liberty, work programs, removal from
office, and disqualification to hold and enjoy any
office of honor, trust, or profit under this State.
N.C. Const. art. XI, § 1. One issue in Allen was whether the
North Carolina legislature was authorized to create the
punishment of LWOP, which Article XI did not expressly mention.
The North Carolina Supreme Court held that it was, reasoning
that “the term ‘life imprisonment without parole’ falls within
the meaning of the constitutional term ‘imprisonment,’ so the
7
See Schick v. Reed, 419 U.S. 256, 269 (1974) (Marshall, J.,
dissenting) (“Confinement without possibility of parole is
unknown to military law; it is not and never has been authorized
for any UCMJ offense.” (footnote and citations omitted)).
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sentence was authorized by the Constitution.” Allen, 488 S.E.2d
at 737. We find Allen persuasive. Applying the North Carolina
Supreme Court’s reasoning to the military justice system
supports the conclusion that “confinement for life without
eligibility for parole” falls within the meaning of R.C.M.
1003(b)(7)’s term “confinement.”
We hold that LWOP was an authorized punishment for
Appellant’s offenses. To resolve the present case, we need not,
and do not, address the availability of LWOP for any other
offense.
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
8