United States v. Shields ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600133
_________________________
UNITED STATES OF AMERICA
Appellee
v.
WILLIAM A. SHIELDS III
Aviation Boatswain’s Mate (Equipment) Third Class (E-4),
U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Heather Partridge, JAGC, USN.
Convening Authority: Commanding Officer, USS HARRY S.
TRUMAN (CVN 75).
Staff Judge Advocate’s Recommendation: Lieutenant Commander
Ryan M. Anderson, JAGC, USN.
For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
USN; Captain Sean M. Monks, USMC.
_________________________
Decided 31 January 2018
_________________________
Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
_________________________
PUBLISHED OPINION OF THE COURT
________________________
HUTCHISON, Senior Judge:
A special court-martial composed of members with enlisted
representation convicted the appellant, contrary to his pleas, of two
specifications of violating the Navy’s sexual harassment instruction, and two
specifications of abusive sexual contact, in violation of Articles 92 and 120,
United States v. Shields-RECON, No. 201600133
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920 (2012).1
The convening authority (CA) approved the adjudged sentence of a bad-
conduct discharge.2
In an opinion issued on 27 June 2017, we set aside the guilty findings for
both abusive sexual contact specifications, set aside the sentence, and
affirmed the appellant’s convictions for violating a general order—the Navy’s
sexual harassment instruction. On 27 July 2017, the appellant filed a
combined Motion to Attach, Motion for Reconsideration, Motion to File
Supplemental Assignment of Error, and Motion for Leave to File. The
common theme in each of the appellant’s motions was that the general order
he was convicted of violating, SECNAVINST 5300.26D issued on 3 January
2006, was not in effect on the date alleged in each of the appellant’s Article
92, UCMJ, specifications by virtue of a self-canceling provision within
SECNAVINST 5215.1E, issued on 28 October 2014. On 31 October 2017, we
granted the appellant’s request for reconsideration, and specified two
additional issues related to the appellant’s Supplemental Assignment of
Error.3 Upon reconsideration, we withdraw our 27 June 2017 opinion and
issue this opinion in its place.
The appellant alleges four assignments of error (AOE), and as noted
above, we specified two additional issues upon reconsideration. For ease of
reading, the AOEs and specified issues are numbered consecutively:4 (1) the
military judge committed plain error when she instructed the members on
reasonable doubt; (2) the military judge erred in denying the appellant’s
motion to dismiss Charge II, Specification 3, which fails to state an offense;
(3) the abusive sexual contact in Charge II, Specification 3, is factually and
legally insufficient; (4) in light of United States v. Hills, 75 M.J. 350 (C.A.A.F.
2016), the military judge’s admission of charged sexual misconduct pursuant
to MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413, SUPPLEMENT TO
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and subsequent
instructions violated the appellant’s due process rights; (5) the revision and
self-canceling provisions of paragraph 4.e of SECNAVINST 5215.1E applied
1 The members acquitted the appellant of an additional sexual harassment
specification, and four additional abusive sexual contact specifications.
2 Commander, Naval Air Force Atlantic took action on the sentence pursuant to
RULE FOR COURTS-MARTIAL 1107(a), MANUAL FOR COURTS-MARTIAL (2012 ed.)
following a request from the CA after USS HARRY S. TRUMAN deployed.
3 “Whether Specifications 1 and 2 of Charge I fail to state an offense in light of
the self-canceling provisions contained in SECNAVINST 5215.1E and OPNAVINST
5215.17A.” Appellant’s Motion to Attach; Motion for Reconsideration; Motion to File
Supplemental Assignment of Error; and Motion for Leave to File of 27 Jul 17 at 4.
4 We have renumbered the AOEs.
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to SECNAVINST 5300.26D of 3 Jan 2006, despite no clear declaration in
SECNAVINST 5215.1E canceling, exempting, or otherwise addressing then-
existing SECNAV directives that had reached their “7-year anniversary”; and
(6) SECNAVINST 5300.26D of 3 Jan 2006 was not under “revision” as
defined in SECNAVINST 5215.1E at any time during the period from 28
October 2014 through 30 June 2015.
Having been resolved by our superior court,5 we summarily reject the first
AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). Regarding the
second and third AOEs, we find that the military judge did not err in denying
the appellant’s motion to dismiss, and that the specification is factually and
legally sufficient. Regarding the fifth AOE, we conclude that SECNAVINST
5300.26D had not been cancelled and was, therefore, a valid lawful order.6
However, we find merit in the fourth AOE, conclude that the error was not
harmless beyond a reasonable doubt, and take corrective action in our
decretal paragraph.
I. BACKGROUND
The appellant served with Airman (AN) BH and Airman Recruit (AR) KC
aboard USS HARRY S. TRUMAN (CVN 75). While underway during June
2015, the appellant made repeated sexual advances towards both AN BH and
AR KC: talking about their bodies, their relationships, his sexual desires, and
trying to kiss them.
At trial, AN BH testified that on one occasion, the appellant approached
her in a lounge area while she was sitting in a rolling chair with her feet up.
The appellant grabbed her left hand and placed it on his “[c]rotch area.”7 AR
KC testified that the appellant approached her, began talking with her, and
then “grabbed [her] belt and pulled [her] toward him, and asked [her] if [she]
would give in yet [sic] to him.”8 AR KC further testified that she was wearing
her coveralls uniform, and that the appellant pulled her towards him by her
belt buckle with “a lot” of force.9 AR KC told the appellant “no,” grabbed his
hand, took it off of her, and walked away.
5 See United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (finding no no error in
the use of the same challenged instruction).
6 This conclusion renders moot the sixth AOE.
7 Record at 430.
8 Id. at 480. When asked again what comment the appellant made when he
pulled on her belt, AR KC responded, “[c]an I have her yet,” which she understood to
mean that the appellant “wanted to get with [her].” Id.9 Id.3
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Following the presentation of evidence, the civilian defense counsel made
a motion, pursuant to RULE FOR COURTS-MARTIAL (R.C.M.) 917, MANUAL FOR
COURTS-MARTIAL (2012 ed.), for a not guilty finding for Charge II,
Specification 3, arguing that it failed to state an offense.10 The military judge
denied the motion, finding that “person to person physical contact” was not
required and that the offense charged in the specification—“pulling her body
close to his body by her belt buckle”—was sufficient to state an offense.11
Before closing arguments, and consistent with an earlier MIL. R. EVID.
413 ruling permitting the use of charged sexual misconduct as propensity
evidence for other charged sexual misconduct, the military judge instructed
the members:
If you determine, by a preponderance of the evidence, that a
charged offense from Specifications 1 through 6 of Charge II
occurred, even if you’re not convinced beyond a reasonable
doubt that the accused is guilty of that offense, you may,
nonetheless, then consider the evidence of that offense for its
bearing on any other matter to which it is relevant only in
relation to Specifications 1 through 6 of Charge II.
You may consider the evidence of such other charged acts of
sexual assault for their tendency, if any, to show the accused’s
propensity or predisposition to engage in abusive sexual
contact.12
The military judge took judicial notice that SECNAVINST 5300.26D of 3
January 2006, the Navy’s sexual harassment instruction, was a lawful
general regulation; the appellant’s civilian defense counsel (CDC)
affirmatively indicated he had “no objections.”13 Consequently, the military
judged instructed the members: “As a matter of law, the regulation in this
case, as described in the specification, is a lawful general regulation . . . it
applies to [the appellant] even if he was unaware of its existence.”14
10 The civilian defense counsel originally styled his motion as a motion for a
“directed verdict,” arguing that because there had been no contact, the motion should
be granted. Id. at 581. The trial counsel clarified, and the defense counsel conceded,
that he understood the argument to really be that the specification did not allege an
offense.
11 Record at 583.
12 Id. at 616-17.
13 Id. at 250-51 (“MJ: Does the defense have any objection to . . . Appellate
Exhibit XXXI, which is the Request for Judicial Notice of the SECNAV instruction?
CDC: No, Your Honor. No objections.”).
14 Id. at 600.
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II. DISCUSSION
A. Failure to state an offense
Charge II, Specification 3, alleged the appellant committed abusive sexual
contact upon AR KC by:
grabbing her belt buckle with his hand, pulling her body close
to his body, and stating “are you going to let me in yet,” or
words to that effect, by causing bodily harm to her, to wit:
grabbing her belt buckle and pulling her body.15
The appellant avers that because the specification does not “plead with
specificity which body part of [AR KC], either directly or through the clothing,
that [the appellant] had touched[,]” it does not state an offense.16 We
disagree.
Whether a charge and specification state an offense is a question of law
that we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006). A specification states an offense if it alleges, either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection against double jeopardy. Id. (citing United States v. Dear, 40 M.J.
196, 197 (C.M.A. 1994)); see also R.C.M. 307(c)(3)).17 When a specification
does not expressly allege an element of the intended offense, appellate courts
must determine whether the element was necessarily implied. United States
v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011). “[W]hen the charge and
specification are first challenged at trial, we read the wording more narrowly
and will only adopt interpretations that hew closely to the plain text.” Id.(citation omitted). Although “[t]he interpretation of a specification in such
a manner as to find an element was alleged by necessary implication is
disfavored[,]” the “law still remains that there is no error when a
specification necessarily implies all the elements of an offense.” United
States v. Hunt, 71 M.J. 538, 538-39 (N-M. Ct. Crim. App. 2012) (en banc)
(citing United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012)).
15 Charge Sheet.
16 Appellant’s Brief of 7 Oct 2016, at 19 (emphasis in original).
17 See also United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (finding plead
charges are sufficient if they “‘first, contain[] the elements of the offense charged and
fairly inform[] a defendant of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.’”) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))
(alterations in original) (additional citations omitted).
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The pertinent elements of Article 120(d), UCMJ, abusive sexual contact,
as incorporated from Article 120(b)(1)(B), UCMJ,18 are: (1) that the appellant
committed a sexual contact upon AR KC, and (2) that he did so by causing
bodily harm to AR KC. In pertinent part, sexual contact is:
(A) touching or causing another person to touch, either directly
or through the clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person, with the intent to abuse,
humiliate, or degrade any person; or (B) any touching, or
causing another person to touch, either directly or through the
clothing, any body part of any person, if done with an intent to
arouse or gratify the sexual desires of any person[.]
Article 120(g)(2), UCMJ.
We are satisfied that the specification alleges either expressly or by
implication every element of abusive sexual contact. “Touching” in the
context of Article 120, UCMJ, “means that contact was made either by an
object or by a body part.” United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F.
2015). In Schloff, the Court of Appeals for the Armed Forces (CAAF)
concluded that a medical provider’s use of a stethoscope to perform an
unnecessary breast exam on a patient constituted abusive sexual contact,
despite no actual body-to-body contact. The CAAF recognized that “object-to-
body contact is not excluded from the scope of Article 120(g)(2), UCMJ[.]” Id.Likewise, the definition of bodily harm, in Article 120(g)(3), UCMJ, provides
clear notice that the touching must be offensive and includes nonconsensual
sexual contact.
The specification at issue here pleads the offensive acts—grabbing AR
KC’s belt buckle and pulling her body—resulting in bodily harm. The clear
implication of grabbing someone by the belt and pulling them is that the belt
necessarily made contact with the waist, hips, or back. That the specification
does not specifically list the body parts the belt touched when the appellant
grabbed and pulled on the buckle is of no import, because “[a] specification is
sufficient so long as [the elements] may be found by reasonable construction
of other language in the challenged specification.” United States v. Russell, 47
M.J. 412, 413 (C.A.A.F. 1998) (citations and internal quotation marks
18 Article 120(d), UCMJ, states: “Any person subject to this chapter who commits
or causes sexual contact upon or by another person, if to do so would violate
subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of
abusive sexual contact and shall be punished as a court-martial may direct.”
Consequently, we incorporate the elements of Article 120(b)(1)(B), UCMJ, for this
abusive sexual contact offense.
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omitted) (second alteration in original).19 Given a “reasonable construction” of
the specification’s language, and the common understanding of where on the
body, and in what manner, a belt is worn, the appellant had notice of which
body parts he touched. Moreover, the language in the specification “are you
going to let me in yet” implies the appellant’s contact was done with the
intent to arouse or gratify his or AR KC’s sexual desires.20 Therefore,
although we read the specification narrowly, we conclude that the language
put the appellant on notice and protected him from a subsequent prosecution
for the same offense.
B. Factual and legal sufficiency
The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325; Art. 66(c), UCMJ), aff’d
on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
reasonable factfinder could have found the appellant committed abusive
sexual contact against AR KC and AN BH. Furthermore, weighing all the
19 In Russell, stating in the specification that an officer “wrongfully” possessed
child pornography was sufficient to imply the element of “knowledge” under 18
U.S.C. § 2252(a). 47 M.J. at 412. See also Crafter, 64 M.J. at 210, 212 (finding that
stating a prison guard accepted money “for” an inmate to meet with his girlfriend
was sufficient to imply the “intent to influence or induce an official act” required for
a bribery specification).
20 Charge Sheet.
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evidence in the record of trial and making allowances for not having
personally observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.21
C. Propensity instruction
The appellant faced six specifications of abusive sexual contact against
four different women. In addition to the two specifications involving AN BH
and AR KC, for which he was convicted, the appellant was also charged with
an additional abusive sexual contact specification involving each Sailor
during June 2015, and two abusive sexual contact specifications against two
other Sailors when he was temporarily assigned to USS DWIGHT D.
EISENHOWER (CVN 69) in July 2012.
Consistent with the state of the law at that time, the military judge found
evidence of each alleged abusive sexual contact admissible as propensity
evidence for the other alleged abusive sexual contacts. Consequently, and
without objection, the military judge instructed the members that if they
found, by a preponderance of the evidence, that any of the charged abusive
sexual contacts occurred, then they could consider that evidence to show the
appellant’s “propensity or predisposition to engage in abusive sexual
contact.”22
In Hills, the CAAF held that using evidence of charged sexual misconduct
as propensity evidence relevant to other charged sexual misconduct is
inconsistent with an accused’s right to presumed innocence. 75 M.J. at 357.
Applying Hills to this case, it is clear that the military judge erred. Where an
instructional error rises to a constitutional dimension, we review the error to
determine if it was harmless beyond a reasonable doubt. United States v.
Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). A constitutional error is harmless
if “it appears ‘beyond a reasonable doubt if the error complained of did not
contribute to the verdict obtained.’” United States v. McDonald, 57 M.J. 18,
20 (C.A.A.F. 2002) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
In other words, “[t]he government must prove there was no reasonable
possibility that the error contributed to [the] verdict.” United States v. Hukill,
76 M.J. 219, 222 (C.A.A.F. 2017) (citations omitted). That is not to say,
however, that the members must be wholly unaware of the instructions at
issue, but rather that the instructions—later found to be erroneous—were
“unimportant in relation to everything else the [members] considered[.]”
United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation and
internal quotation marks omitted).
21 Clifton, 35 M.J. at 79.
22 Record at 617.
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The members acquitted the appellant on four of the six abusive sexual
contact specifications, including all those stemming from his 2012
assignment to USS DWIGHT D. EISENHOWER. However, evidence
supporting the two specifications for which he was convicted, while factually
sufficient, was not overwhelming. There was no confession, physical evidence,
or eyewitnesses (other than the two victims), and the defense presented
evidence that the appellant had a friendly, playful relationship with both AN
BH and AR KC.
In the government’s rebuttal argument, the trial counsel emphasized the
propensity evidence:
If you believe that any one of these sexual contacts were proved
more likely than not—so that’s different than beyond a
reasonable doubt.
It basically means 51 percent. It’s more likely that it
happened than didn’t happen. If you think that any one of
those was proven more likely than not, you can use that in
deliberating about the other ones, and that means that you can
look at each abusive sexual contact that we’ve proven more
likely than not and make a determination about whether or not
[the appellant] is somebody who’s more likely to touch
somebody in a sexual way.
You can use that. You can use the abusive sexual contact
charges in your deliberations of the other charges. . . . You can
use that to say that [the appellant] is somebody who touches
people in a sexual way; is more likely to have done it than
somebody who isn’t so predisposed. You can do that.23
Although the members were not convinced beyond a reasonable doubt
that the accused committed each abusive sexual contact charged, there is a
reasonable possibility they “bootstrap[ed] their ultimate determination of the
accused’s guilt” with respect to the offenses against AN BH and AR KC for
which he was convicted, “using the preponderance of the evidence burden of
proof with respect” to the offenses of which he was acquitted. Hills, 75 M.J. at
357. While it is certainly possible for members to convict an accused based
solely upon the testimony of his accusers, in order to sustain that conviction
upon review in light of the instructional error, we must be convinced beyond
a reasonable doubt “that the erroneous propensity instruction played no role”
in the conviction. United States v. Guardado, 77 M.J. 90, slip op. at * 12
(C.A.A.F. 2017). In short, and based upon this record, we are not convinced
23 Id. at 661.
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that the members considered this evidence “unimportant in relation to
everything else[.]” Moran, 65 M.J. at 187. So, although we find the
appellant’s convictions for abusive sexual contact to be both legally and
factually sufficient, we are not convinced beyond reasonable doubt that the
instructional error did not contribute to those convictions.
D. Sexual harassment instruction
The appellant contends that Specifications 1 and 2 of Charge I, alleging
that he violated SECNAVINST 5300.26D, fail to state offenses because a
subsequent directive issued by the Secretary of the Navy cancelled the sexual
harassment instruction. The Secretary of the Navy Directives Policy,
SECNAVINST 5215.1E of 28 October 2014, “sets forth policy and
responsibilities for developing and maintaining directives from the Secretary
of the Navy (SECNAV).” Specifically, the appellant argues that paragraph 4.e
of SECNAVINST 5215.1E operates to cancel SECNAVINST 5300.26D.
Paragraph 4.e states:
All SECNAVINSTs and SECNAV manuals shall be reviewed
beginning on the second anniversary of the document’s
effective date and every 2 years thereafter to ensure necessity,
currency, and consistency with Department of Defense (DoD)
policy, existing law, and statutory authorities. Directives
reaching a 6-year anniversary without reissuance may be
certified as current for an additional year. After 6 years, the
directive shall be revised. Extensions beyond the 6-year
anniversary date must be requested through the Department of
the Navy/Assistant for Administration (DON/AA) and approved
by SECNAV. Directives reaching the 7-year anniversary that
are not in the revision process are self-canceling on that date
and continued use requires a full revision to the next available
point number.
The appellant contends that the self-cancelling language of paragraph 4.e of
SECNAVINST 5215.1E immediately and automatically cancelled then-
existing instructions that were over seven years old—such as SECNAVINST
5300.26D. We disagree.
As we noted supra, a specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as to give the
accused notice and protection against double jeopardy. Crafter, 64 M.J. at
211. The elements for violation of a lawful general order or regulation, under
Article 92, UCMJ are:
(a) That there was in effect a certain lawful general
order or regulation;
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United States v. Shields-RECON, No. 201600133
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the order
or regulation.24
The specifications at issue here each allege that, “from on or about 22 May
2015 until on or about 30 June 2015,” the appellant “violate[d] a lawful
general order, to wit: Paragraph 7(a)(1), SECNAVINST 5300.26D, dated 3
January 2006 by wrongfully sexually harassing” AN BH and AR KC,
respectively.25 These specification fairly placed the appellant on notice and
allege every element of the offense. The appellant contends, however, that the
specifications “fail to state an offense because SECNAVINST 5300.26D was
not in effect at the time of the alleged misconduct. Violations of Article 92,
UCMJ require a valid order.”26
The government avers that the appellant waived appellate review
concerning the validity of the order when he consented to the trial judge
taking judicial notice of SECNAVINST 5300.26D. In this case we need not
decide whether the appellant waived this issue because, mindful of our
plenary review mandate under Article 66(c), UCMJ, we determine that the
plain language of SECNAVINST 5215.1E did not cancel SECNAVINST
5300.26D. See United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (“CCAs
have an affirmative obligation to ensure that the findings and sentence in
each . . . case are correct in law and fact . . . and should be approved” and “are
required to assess the entire record to determine whether to leave an
accused’s waiver intact, or to correct the error”) (citations and internal
quotation marks omitted).
Construction of a regulation, such as SECNAVINST 5215.1E, is a
question of law, which we review de novo. United States v. Estrada, 69 M.J.
45, 47 (C.A.A.F. 2010); United States v. United States v. McCollum, 58 M.J.
323, 340 (C.A.A.F. 2003). “In interpreting regulations, we apply the general
rules of statutory construction.” Estrada, 69 M.J. at 47 (citing United States
v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007)) (additional citation omitted).
“Statutory construction begins with a look at the plain language of a rule.”
United States v. Rodriguez, 67 M.J. 110, 115 (C.A.A.F. 2009) (citation
omitted).
24 MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶
16b(1).
25 Charge Sheet.
26 Appellant’s Motion to Attach; Motion for Reconsideration; Motion to File
Supplemental Assignment of Error; and Motion for Leave to File at 8.
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The first sentence of paragraph 4.e directs that SECNAV directives shall
be reviewed on the second anniversary of their effective date and every two
years thereafter. Clearly this language is prospective; the direction to review
an instruction on its second anniversary cannot apply to instructions that are
already more than two years old. Paragraph 4.e then states that directives
“reaching” the six-year anniversary may be certified as current for another
year, but “shall be revised” and those directives “reaching” the seven-year
anniversary, not in the revision process are “self-canceling.” The “use of a
verb tense is significant in construing [regulations].” United States v. Wilson,
503 U.S. 329, 333 (1992) (citations omitted). Here, the use of the present
participle “reaching”—as opposed to the past tense/past participle “reached”
or even the perfect participle “having reached”—when read in conjunction
with the clearly prospective opening sentence of paragraph 4.e makes clear
that SECNAVINST 5215.1E is concerned with “developing and maintaining
[SECNAV] directives” going forward and not with canceling current, seven-
year old instructions.27 See Laube v. Allen, 506 F. Supp. 2d 969, 980 (M.D.
Ala. 2007) (“[A] present participle . . . denotes action that is continuing or
progressing, as distinct from . . . a perfect participle that denotes completion”)
(citing John B. Opdycke, Harper’s English Grammar, 141 (rev. ed. 1966);
Morse v. Servicemaster Global Holdings, Inc., 2012 U.S. Dist. LEXIS 144691,
at *15 (N.D. Cal. Oct. 4, 2012) (Use of the present participle “arising” in an
arbitration agreement made clear that the agreement applied to claims that
may arise going forward, not claims that have already accrued).
The Secretary of the Navy could have explicitly cancelled then-existing
seven-year-old instructions, but chose not to do so. Rather, the plain language
of SECNAVINST 5215.1E and its use of the present participle verb tense
convinces us that it only applied prospectively and did not cancel instructions
such as SECNAVINST 5300.26D that had already reached their seventh
anniversary by the time of SECNAVINST 5215.1E’s publication. Thus,
SECNAVINST 5300.26D was a valid general regulation at the time of the
appellant’s offenses.
Finally, our conclusion that SECNAVINST 5300.26D was a valid
instruction during the time of the appellant’s offenses also renders moot the
appellant’s contention that he received ineffective assistance of counsel when
his CDC failed to object to the military judge’s taking judicial notice of
SECNAVINST 5300.26D.28 Since the instruction was valid, we find neither
deficient performance in the counsel’s failure to object nor any prejudice,
27 SECNAVINST 5215.1E at ¶ 1.
28 See Appellant’s Reply to Appellee’s Answer to Show Cause Order of 17 Oct 17
at 7 (“Should this Court apply waiver, then it must also determine whether [the
appellant’s] counsel were ineffective”).
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United States v. Shields-RECON, No. 201600133
since there is no “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).
III. CONCLUSION
The guilty findings to Charge II, Specifications 2 and 3, and the sentence
are set aside. The remaining findings are affirmed. The record is returned to
the Judge Advocate General for remand to an appropriate CA with a
rehearing authorized on Charge II, Specifications 2 and 3, and the sentence—
or on the sentence alone.
Judge FULTON and Judge SAYEGH concur.
For the Court
R.H. TROIDL
Clerk of Court
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