IN THE
CASE OF
UNITED
STATES, Appellee
v.
Michael J.
HENDERSON, Damage Control Fireman Apprentice
No. 03-0470
Crim. App.
No. 200101752
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which GIERKE, EFFRON, and
BAKER,
JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
For Appellant:
Lieutenant
Rebecca S. Snyder, JAGC, USNR.
For Appellee: Lieutenant
Frank L. Gatto, JAGC, USNR (argued); Commander R. P. Taishoff,
JAGC,
USN (on brief).
Military Judge:
B. W.
MacKenzie
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
Appellant
Damage Controlman Fireman
Apprentice (DCFA) Michael J. Henderson was charged with making a false
official
statement, willful damage to military property, willfully hazarding a
vessel,
wrongfully using marijuana, larceny of military property, and wrongful
appropriation,
in violation of Articles 107, 108, 110, 112a, and 121 of the Uniform
Code of
Military Justice [UCMJ], 10 U.S.C. §§ 907-908, 910, 912a, and 921
(2000),
respectively. The only charge at issue
in this appeal is “willfully hazarding a vessel” in violation of
Article 110.
We granted review of the following issues pursuant to Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):
I. WHETHER APPELLANT'S SPECIAL
COURT-MARTIAL
LACKED JURISDICTION TO TRY HIM FOR AN ALLEGED VIOLATION OF ARTICLE 110,
UCMJ, A
CAPITAL OFFENSE, WHERE THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY
REFERRED
THE CHARGE TO A SPECIAL COURT-MARTIAL WITHOUT OBTAINING CONSENT FROM
APPELLANT'S
GENERAL COURT-MARTIAL CONVENING AUTHORITY.
ii. WHETHER
APPELLANT'S PLEA OF GUILTY TO NEGLIGENTLY HAZARDING A VESSEL WAS
IMPROVIDENT.
We
hold that the special court-martial lacked jurisdiction over the charge
of
willfully hazarding a vessel and the lesser-included charge of
negligently
hazarding a vessel, and therefore the findings related to the
lesser-included
offense of negligently hazarding a vessel are void.
In light of this disposition, we do not reach
Issue II.
FACTS
The
charges against
DISCUSSION
The
jurisdiction of a special court-martial over a non-mandatory capital
offense is
a legal question which we review de novo. See
United States v. Melanson,
53 M.J. 1, 2 (C.A.A.F. 2000)(in personam
jurisdiction).
The
elements of Article 110, “improper hazarding of vessel,” are “(1)
[t]hat a
vessel of the armed forces was hazarded in a certain manner; and (2)
[t]hat the
accused by certain acts or omissions, willfully and wrongfully, or
negligently,
caused or suffered the vessel to be hazarded.” Manual
for Courts-Martial,
Article
19, UCMJ, 10 U.S.C. § 819 (2000) “jurisdiction of special
courts-martial,”
provides in pertinent part: “[S]pecial courts-martial have jurisdiction
to try
persons subject to this chapter for any noncapital offense made
punishable by
this chapter, and, under such regulations as the President may
prescribe, for
capital offenses.” Rule for Courts-Martial
201(f)(2)(C) [R.C.M.], a regulation
prescribed by the
President, withholds jurisdiction over mandatory capital cases from
special
courts-martial, but does provide for jurisdiction over non-mandatory
capital
offenses under two circumstances: (1) when permitted by an “officer
exercising
general court-martial jurisdiction over the command which includes the
accused”; and (2) when authorized by regulation by the Secretary
concerned. R.C.M.
201(f)(2)(C)(ii)-(iii).
There is neither evidence nor argument that
either of the exceptions in R.C.M. 201(f)(2)(C)
applied in
The
Government argues that despite the lack of permission under R.C.M.
201(f)(2)(C)(ii)
or (iii), the special court-martial had jurisdiction in this case
because: (1)
the convening authority “functionally” referred the charge of
negligently
hazarding the USS TARAWA when Henderson entered into the pretrial
agreement;
(2) even if this Court were to find that the pretrial agreement was not
the
functional equivalent of a formal referral, the lesser-included charge
was
still implicitly referred to the special court-martial when the
convening
authority referred the capital charge; and, in any event, (3) the
failure to
obtain the permission of the officer exercising general court-martial
jurisdiction over an accused prior to referring a capital offense is a
nonjurisdictional, procedural defect which is forfeited if not raised
at trial.
We
will first address the Government’s
argument that the referral of a non-mandatory capital offense to a
special
court-martial without first securing permission from the officer
exercising
general court-martial jurisdiction over the accused is a
nonjurisdictional,
procedural defect, as that issue is largely dispositive of the
remaining
issues.
1. Nonjurisdictional
Procedural Defect
The
Government asks us to find that the error here was a nonjurisdictional
procedural defect and urges us to overrule United States v. Bancroft,
3
C.M.A. 3, 11 C.M.R. 3 (1953). Bancroft was a Korean War case
where the
accused had been charged with violation of Article 113, UCMJ, 10 U.S.C.
§ 913
(2000) for sleeping at his post. A
conviction for violation of Article 113 during time of war was (and
still is)
punishable “by death or such other punishment as a court-martial may
direct.” The charges were referred to a
special court-martial which found Bancroft guilty and sentenced him to
a
bad-conduct discharge, forfeiture of $30 a month for six months, and
confinement for six months.
A
Navy board of review1
held that because a violation of
Article 113 could be punished by death
when committed in time of war and because the offense occurred in
The
Government does not challenge the validity of the Bancroft
holding on
legal grounds, but rather argues that several of our more recent
decisions characterizing
certain forms of error in the referral process as nonjurisdictional
have eroded
its continued validity. The Government
points to our decision in United States v. Jeter, 35 M.J. 442,
447
(C.M.A. 1992), where we found that the failure of a general
court-martial
convening authority who was also an accuser to forward charges to the
next
higher level for referral was nonjurisdictional error.
See also United
States v. Shiner, 40 M.J. 155, 157 (C.M.A. 1994). Similarly, the Government
points to our decision in United States v. Kohut, 44 M.J. 245,
250
(C.A.A.F. 1996), where we found the referral of charges to a special
court-martial in violation of a service policy to be nonjurisdictional
error.
Even
if we were to assume that our decisions in Jeter and Kohut
represent some form of "evolution" in the law applicable to
jurisdictional defects in the referral process, that "evolution" does
not extend so far as to alter the logic and holding in Bancroft. None of the cases relied on by the Government
involves the factors common to both Bancroft and the present
case -- the
referral of a capital charge to a special court-martial without
authorization
from the officer exercising general court-martial jurisdiction over the
accused
or from the Secretary of the Navy.
The
situation in the present case is strikingly similar to Bancroft,
and we
take this occasion to reaffirm our holding in that case.
As in Bancroft, the officer making the
referral here exercised only special court-martial jurisdiction and
referred a
capital charge to a special court-martial without the authorization to
do
so. We therefore find that the
court-martial in the present case lacked jurisdiction over the capital
charge
of willfully hazarding a vessel.
2. The
Functional Equivalent of a Referral
The
Government goes on to argue that even if there was no jurisdiction over
the
charge of willfully hazarding a vessel, when the special court-martial
convening authority entered into a plea agreement with Henderson, in
which
Henderson agreed to plead guilty to the lesser-included charge of
negligently
hazarding a vessel, that agreement became the “functional equivalent”
of a
referral authorized under R.C.M. 601.
The Government therefore asserts that the plea agreement was
essentially
a new referral of the lesser-included charge of negligently hazarding a
vessel,
a charge which the commanding officer of the USS TARAWA was authorized
to refer
as a special court-martial convening authority.
The
Government looks to our decision in United States v. Wilkins,
29 M.J.
421 (C.M.A. 1990), for support of its position.
In Wilkins, the accused was charged with larceny but
entered into
a pretrial agreement with the special court-martial convening authority
in
which he agreed to plead guilty to receiving stolen property. The offense of receiving stolen property was
not included in the original referral of charges, nor is it a
lesser-included
offense to the offense of larceny. This
Court concluded that the pretrial agreement between Wilkins and the
convening
authority was the functional equivalent of a referral of the charge and
specifications of receiving stolen property.
In
Wilkins, however, the convening authority had the authority to
refer
both the larceny and receiving stolen property charges to the special
court-martial, and the court-martial had subject matter jurisdiction
over the
offenses. The Court’s decision was based
on the rationale that while a referral is a jurisdictional
prerequisite, the
form of the referral is not jurisdictional.
The
Government’s reliance on Wilkins is misplaced. The
case before us involves a challenge to the
jurisdiction of a special court-martial to try a non-mandatory capital
offense
in the absence of authorization from either the officer exercising
general
court-martial jurisdiction over the accused or from the Secretary of
the Navy -
- it is not simply a challenge to the “form” of the referral. Under the circumstances found in this case,
the special court-martial lacked jurisdiction ab initio.
“[W]hen a criminal action is tried before a
court which does not have jurisdiction, the
entire
proceedings are a nullity.”3 Bancroft,
3 C.M.A.
at 11, 11 C.M.R. at 11.
The
primary distinction between this case and Bancroft is that
3. Implicit
Referral
The
Government alternatively argues that when the special court-martial
convening
authority referred the charge of willfully hazarding a vessel to the
special
court-martial, it implicitly referred the lesser-included offense of
negligently hazarding a vessel at the same time, under the general
principles
of notice pleading. The Government
relies primarily on our statement in United States v. Virgilito,
22
C.M.A. 394, 396, 47 C.M.R. 331, 333 (1973), that a lesser-included
offense does
not have to be independently referred if the allegations “fairly
embrace the
elements of the lesser offense and thus give adequate notice to the
accused of
the offenses against which he must defend.”
Virgilito
does not control the outcome here because it did not involve any defect
in the
court’s jurisdiction over the originally preferred charge.
For
all these reasons,
DECISION
The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals as to
Charge III and the sentence is reversed, but is affirmed in all other
respects. The finding of guilty of Charge
III and the
sentence are set aside. The record of
trial is returned to the Judge Advocate General of the Navy for remand
to the
Court of Criminal Appeals. That court
may either dismiss Charge III and reassess the sentence based on the
affirmed
guilty findings or order a rehearing.
1 The term “board of review” was
replaced by “Court of Military Review” in 1968.
Military Justice Act of 1968, Pub. L. No.
90-632, §
25, 82 Stat. 1335, 1341 (1968).
That term was in turn replaced by “Court of Criminal Appeals” in
1994. National Defense Authorization Act
for Fiscal Year 1995, Pub. L. No. 103-337, §
924(b), 108
Stat. 2663, 2831 (1994).
2 MCM
(1951 ed.) paragraph 15
is the predecessor to R.C.M. 201(f)(2). The limitations and exceptions with regard to
jurisdiction over capital cases are unchanged.
3 In Bancroft
the only charge
was the jurisdictionally-defective capital charge.
Jurisdiction over a charge unrelated to a
jurisdictionally-defective charge or a lesser-included offense of the
unrelated
charge remains valid. Only the finding
and sentence related to the
defective charge are a nullity.
CRAWFORD, Chief Judge (dissenting):
The majority holds that the lesser-included charge of negligently hazarding a vessel was “fatally tainted” by the lack of jurisdiction for the greater charge. On the contrary, the convening authority’s derivatively defective referral of the lesser-included charge constituted waivable, nonjurisdictional error, which not only failed to prejudice Appellant, but actually benefited him. For this reason, I respectfully dissent from the lead opinion.
“[I]t
is well
established that a defective referral . . . does not constitute
jurisdictional
error.”
Importantly,
errors which are nonjurisdictional, such as defective referrals, “are
normally
waived when they are not timely raised at trial.”
In United
States v. Wilkins, 29 M.J. 421 (C.M.A. 1990), the appellant was
charged
with specifications of larceny, but under the terms of a pretrial
agreement
pleaded guilty to receiving stolen property.
Although the convening authority accepted the plea offer, he did
not
order the stolen property charges referred to trial.
The lower court found the court-martial did
not have jurisdiction to find the appellant guilty of receiving stolen
property
“because no such charge had been properly referred to the court-martial
for
trial.”
The convening authority, on the one
hand, and [the appellant] and his defense counsel, on the other, were
aware
that the court-martial could not enter the findings of guilty
contemplated by
the pretrial agreement unless the court-martial had jurisdiction over
the
receiving charge, and it could not have jurisdiction unless that charge
was
referred to the court-martial by the convening authority.
Implicit in the convening authority's personal
decision to enter into the pretrial agreement was his personal decision
that
the receiving charge be referred to the general court-martial where the
larceny
charges were pending.
Applying the Wilkins prejudice analysis to the case at bar, it is clear that Appellant suffered no harm whatsoever by the convening authority’s derivatively defective referral of the lesser-included charge. The majority observes that because it was never formally referred, the lesser-included “charge” of negligently hazarding a vessel never achieved the status of an independent charge, and therefore inherited the defectiveness of the original referral. Even assuming defectiveness transferred in this manner, we must acknowledge that the transfer occurred by and for the benefit of Appellant, through the pretrial agreement. In other words, the convening authority’s initial improper referral of charges for a capital offense to a special court-martial was, through the pretrial agreement, “modified by and for the benefit of the accused” to secure conviction of a non-capital, and therefore much less severe, offense. Having reaped the great benefit of his own chosen bargain, Appellant cannot now complain that the charge originated defectively.
The majority relies upon United States v. Bancroft, 3 C.M.A. 3, 11 C.M.R. 3 (1953), in which this Court held that a special court-martial lacked jurisdiction over a charge of sleeping on post in the time of war, due to the convening authority’s failure to comply with prescribed requirements that would vest it with jurisdiction over a nonmandatory capital offense. In my view, Bancroft should not control this Court’s decision for two reasons. First, the more recent trend by this Court, embodied in King, is to treat referral defects as waivable, nonjurisdictional error. Moreover, the charges in Bancroft were referred for, and the accused convicted of, a capital offense. By contrast, in the present case, the derivatively defective referral secured Appellant’s conviction of a non-capital offense. Thus, far from being harmed by the convening authority’s error in this case, Appellant benefited from the resulting conviction of a much less severe offense.
Accordingly,
I
would hold that the convening authority’s defective referral in this
case was
waivable, nonjurisdictional error, the ultimate results of which
benefited
Appellant. Given the clear absence of
prejudice, I would affirm the decision of the lower court.