United States v. Mack , 58 M.J. 413 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Annie R. MACK, Specialist
U.S. Army, Appellant
No. 03-0029
Crim. App. No. 9900146
United States Court of Appeals for the Armed Forces
Argued April 29, 2003
Decided July 1, 2003
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
Captain Mary E. Card (on brief); Major Imogene M. Jamison.
For Appellee: Captain Mark J. Hamel (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
Leeker and Major Jennifer H. McGee (on brief).
Military Judge: John P. Galligan
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mack, No. 03-0029/AR
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to her pleas, of attempted
larceny, conspiracy to commit forgery, conspiracy to commit
larceny, larceny, and five specifications of forgery, in
violation of Articles 80, 81, 121, and 123, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 881, 921,
923 (2000), respectively. She was sentenced to a bad-conduct
discharge and confinement for two years. The convening
authority approved the sentence but waived the automatic
forfeitures from April 16 to October 13, 1999, with direction
for payment of those funds to her dependents. See Article 58b,
UCMJ, 10 U.S.C. § 858b (2000). The Court of Criminal Appeals
affirmed in an unpublished opinion. United States v. Mack, Army
No. 9900146 (Army Ct. Crim. App. May 16, 2002).
We granted review of the following issue:
WHETHER TWO ALTERNATE ENLISTED MEMBERS WHO SAT
ON APPELLANT’S COURT-MARTIAL WERE IMPROPERLY
DETAILED, AND WHETHER THEIR PRESENCE WAS
INCONSISTENT WITH THE CONVENING AUTHORITY’S
INTENT, AND THEREBY RENDERED THE PROCEEDINGS A
NULLITY.
In addition, we specified the following issue:
WHETHER THE LOWER COURT ERRED IN AFFIRMING
APPELLANT’S SEPARATE CONVICTIONS FOR
SPECIFICATION 1 (CONSPIRACY TO COMMIT FORGERY)
AND SPECIFICATION 2 (CONSPIRACY TO COMMIT
LARCENY) OF CHARGE I WHERE THERE WAS BUT ONE
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AGREEMENT TO COMMIT THE MULTIPLE SUBSTANTIVE
OFFENSES? SEE UNITED STATES V. PEREIRA, 53 M.J.
183 (C.A.A.F. 2000).
On the granted issue, we hold that the record does not
demonstrate that any members of the court-martial panel served
in contravention to the convening authority’s intent. On the
specified issue, we consolidate the two conspiracy
specifications and conclude that Appellant was not otherwise
prejudiced as to the findings and the sentence.
I. THE COURT-MARTIAL PANEL
A. BACKGROUND
1. Trial proceedings
Charges against the Appellant were referred by the
convening authority to a general court-martial convened under
Court-Martial Convening Order Number 10. The convening order
listed primary and alternate members, and set forth a procedure
for modifying the panel’s composition in the event of a request
for trial before a panel that included enlisted members. The
members listed on the convening order were selected personally
by the convening authority.
Pursuant to Article 25(c), UCMJ, 10 U.S.C. § 825(c) (2000),
Appellant requested that at least one-third of the court-martial
panel be composed of enlisted members. The pertinent portion of
the convening order listed the names of six officers and six
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enlisted members. The order also provided the following
procedure for making replacements in the event that the number
of enlisted members fell below the one-third statutory quorum
requirement: “Should before trial, or at trial the number of
enlisted members fall below quorum, the first two available
enlisted members in the order listed below are automatically
detailed to the court[.]” The first three names on the list
were: Command Sergeant Major (CSM) S, CSM M, and Sergeant Major
(SGM) S-R. In the course of convening this court-martial, the
convening authority adopted the criteria set forth by the staff
judge advocate (SJA), which noted that the first two available,
alternate enlisted members would be “automatically detailed”
without further action by the convening authority --
(a) if, before trial, the number of enlisted
members of the GCM, BCD SPCM, or SPCM court-
martial panel falls below one-third plus
two, or
(b) if, before trial, the total number of
members of the GCM court-martial panel falls
below nine, or
. . . .
(d) if, before trial, the total number of
members of the GCM court-martial panel falls
below nine as indicated in paragraph
3(e)(5)(b) above, then you also direct that
the first three alternate, not previously
excused, officer members be detailed, or
(e) if, at trial, a panel falls below
enlisted quorum, or
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(f) if, at trial, a panel falls below
quorum.
After the military judge called the court-martial to
order, trial counsel announced that “the following persons” had
been “detailed to this court-martial,” and read 11 names into
the record. See Rule for Court-Martial 813(a)(4). The
announcement included two enlisted members from the convening
authority’s list of alternates, CSM M and SGM S-R. Trial
counsel also announced the names of two officers and one
enlisted member who had been excused. Defense counsel did not
make any inquiries regarding the presence of CSM M or SGM R-S or
the excusal of the other members, nor did defense counsel
otherwise object to the composition of the panel. The defense
did not challenge any of the panel members. The panel sat for
the entire trial, through the adjudication of the findings and
the sentence, without objection from the defense.
2. Consideration by the Court of Criminal Appeals
Appellant filed a brief with the Court of Criminal Appeals
challenging the factual and legal sufficiency of two findings.
The Court decided on its own motion to remand the case for an
evidentiary hearing concerning the propriety of the presence of
CSM M and SGM R-S on the court-martial panel. See United States
v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967).
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The DuBay hearing was conducted by the military judge who
presided at Appellant’s trial. The evidence received at the
hearing included the convening order and related selection
documents quoted above; a letter pertinent to the reason why CSM
S, the first alternate enlisted member named in the convening
order, had not been detailed; a stipulation of expected
testimony from the convening authority stating that his “intent
as to the mechanisms that would trigger the automatic detailing
of alternate enlisted members [was] fully captured in the
selection documents”; and a stipulation of fact in which both
parties acknowledged that no documentary evidence could be
located concerning the excusal of the three original members or
adding CSM M and SGM S-R to the panel.
The military judge, who made findings of fact and
conclusions of law, found that no one present during the court-
martial had questioned the legitimacy of the court-martial
panel. The military judge also found that “it [was] impossible
to discern what the convening authority's intent was with
respect to the appointment of the alternate enlisted members who
sat on [A]ppellant’s court-martial.” The military judge
concluded as a matter of law that it was the Government’s burden
to demonstrate that the court-martial was properly composed and
that the Government had not met its burden in this case. Based
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United States v. Mack, No. 03-0029/AR
on that determination, the military judge concluded that the
court-martial lacked jurisdiction.
The Army Court of Criminal Appeals affirmed Appellant’s
conviction in a per curiam opinion. In a footnote, the court
referred to the DuBay hearing, stating that
Command Sergeant Major (CSM) M and Sergeant
Major (SGM) S-R were appointed as alternate
enlisted members to sit on [A]ppellant’s
court-martial if the number of enlisted
members fell below a quorum “before trial,
or at trial[.]” There is no clear
explanation as to how either came to sit on
[A]ppellant’s court-martial, despite the
fact that the panel would not have been
below a quorum without them. After
participating in voir dire with the other
members, neither side challenged CSM M or
SGM S-R. Their presence as members does not
constitute jurisdictional error. Cf. United
States v. Herrington, 8 M.J. 194, 195
(C.M.A. 1980)(a detailed member who had
previously been excused was not challenged
during voir dire and found not to be an
interloper).
Mack, Army No. 9900146, slip op. at 2 n.*.
B. DISCUSSION
The responsibility for the composition of a court-
martial panel rests with the convening authority. Article
25. When a service member exercises the right to request a
panel that includes enlisted members, the convening
authority must ensure compliance with the statutory
requirement that enlisted members compose at least one-
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third of the panel. See id. The convening authority may
accomplish this through a variety of actions, including
orders that automatically add specific members to the panel
upon the occurrence of well-defined triggering events.
Only those service members who are detailed to a
specific court-martial can serve on that court-martial
panel. When the convening orders and the record make it
clear that an individual who served on a court-martial
panel was never detailed to do so, we have held that the
court-martial was improperly constituted and the findings
must be set aside. United States v. Harnish, 12 C.M.A.
443, 31 C.M.R. 29 (1961). When the record reflects an
ambiguity as to whether an individual was detailed to serve
at a particular court-martial, we look to the intent of the
convening authority with respect to service of that member
on that court-martial panel. United States v. Padilla, 5
C.M.R. 31, (C.M.A. 1952). When there is an ambiguity but
no evidence that the convening authority’s intent was to
the contrary, “the construction of the convening orders by
the participants of [the] trial is controlling.” United
States v. Gebhart, 34 M.J. 189, 193 (C.M.A. 1992).
In the present case, the convening authority included both
CSM M and SGM S-R on the convening order for this court-martial
panel, and provided that they would be “automatically detailed”
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United States v. Mack, No. 03-0029/AR
to the court-martial upon the occurrence of any of a defined set
of triggering events. There was no requirement for trial
counsel to address the circumstances of a triggering event in
more detail absent a request that the trial counsel set forth
the details of the triggering event. Trial counsel's only
obligation was to state on the record that the members were
properly detailed. See Gebhart, 34 M.J. at 193 (the prosecution
is not obligated to place in the record the precise sequence of
events leading to changes in the composition of the court-
martial where there is no evidence that convening authority’s
intent was frustrated and the actions of the parties at trial
are consistent with that assumption).
The present case is distinguishable from Harnish, 12 C.M.A.
at 444, 31 C.M.R. at 30 (Ferguson, J., concurring), where an
unambiguous record demonstrated that the two "interlopers," who
were not included in the applicable convening order, had not
been selected by the convening authority to sit on the court-
martial to which the case had been reassigned. This case also
is distinguishable from Padilla and Gebhart, where the wording
of the convening orders created doubt as to the intent of the
respective convening authorities. Here, there is no doubt as to
what the convening authority intended, nor is there any doubt
that the convening authority issued an order adding the two
members to Appellant’s court-martial panel upon the occurrence
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United States v. Mack, No. 03-0029/AR
of a specific triggering event. When a convening authority
refers a case for trial before a panel identified in a specific
convening order, and the convening order identifies particular
members to be added to the panel upon a triggering event, the
process of excusing primary members and adding the substitute
members involves an administrative, not a jurisdictional matter.
Absent objection, any alleged defects in the administrative
process are tested for plain error. See United States v. Cook,
48 M.J. 434, 436 (C.A.A.F. 1998).
Appellant has not challenged the validity of the convening
authority’s use of the automatic process to add members in the
present case. Thus, the only question before us is whether,
under the record established at trial and during the DuBay
proceedings, prejudicial plain error occurred in the process of
excusing members and adding the two members at issue here, each
of whom had been specifically identified by the convening
authority in the convening order to be added upon the occurrence
of a triggering event. See id.
In this case, the record of trial and the record of the
DuBay proceedings reflect the following: (1) the convening
authority personally selected the primary and alternate members
listed on Court-Martial Convening Order Number 10, including the
members whose service on the panel is at issue in this appeal;
(2) the convening authority referred the charges in the present
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United States v. Mack, No. 03-0029/AR
case to the court-martial convened under Court-Martial Convening
Order Number 10; (3) the convening order contained a procedure
automatically excusing certain members and adding other members
in the event of a request for a panel that included enlisted
members; (4) Appellant requested a panel that included enlisted
members; (5) the members at issue in the present appeal were
included on the convening order in the category of members to be
added to the court-martial panel in the event of a triggering
event that caused the number of enlisted members on the panel to
fall below quorum; (6) three primary members -- two officer and
one enlisted -- were excused prior to trial; and (7) trial
counsel stated at trial that the members had been detailed
properly.
In the present case, the record does not contain evidence
demonstrating error, much less prejudicial error, in the
mechanics of the triggering process. On the contrary, the
record is consistent with the occurrence of a triggering event.
Excusal of one officer and the one enlisted member prior to the
excusal of the other officer would have reduced the panel to ten
members, five of whom were officers and five of whom were
enlisted. At that point, the number of enlisted members would
have been less than one-third of the total panel plus two, which
is the first triggering event listed in the SJA’s memorandum to
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the convening authority regarding operation of the convening
order.
At trial, there was no requirement for the trial counsel to
address the circumstances of the triggering event. On appellate
review, including review during a DuBay proceeding, the
Government likewise was not obligated to produce evidence of the
actual operation of the triggering mechanism absent evidence in
the trial record or adduced after trial raising reasonable
questions regarding the triggering mechanism.
Even if the military judge at the DuBay hearing had
concluded that there had been an error in the operation of the
triggering process, that would not have ended the inquiry.
Where, as in this case, the record establishes that the members
of the panel were listed on the face of the pertinent convening
order to be added upon a triggering event and the panel met the
applicable one-third enlisted composition requirement, any error
in the operation of the triggering mechanism was administrative,
not jurisdictional, and Appellant was required to demonstrate
prejudice. See Cook, 48 M.J. at 486. There has been no showing
of prejudice in this case.
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II. MULTIPLE CONSPIRACY SPECIFICATIONS
A. BACKGROUND
Appellant and her co-conspirator sought to steal $3,000
from the American Red Cross Emergency Services. To that end,
they conspired to steal a check from the Red Cross and to
falsely make out that check for $3,000, payable to Appellant’s
co-conspirator.
In this context, the charges against Appellant included two
separate conspiracy specifications. The first specification
charged Appellant with conspiring to commit forgery by falsely
making out an American Red Cross Emergency Services check to her
co-conspirator for the amount of $3,000. The second
specification alleged that Appellant conspired to commit larceny
of $3,000 from the American Red Cross Emergency Services by
stealing the same Red Cross check. At trial, the prosecution
produced evidence of only one agreement – to steal money from
the American Red Cross Emergency Services.
B. DISCUSSION
In the present appeal, the Government acknowledges that
there was only one conspiracy. See Braverman v. United States,
317 U.S. 49, 53 (1942)(holding that it is the “agreement which
constitutes the conspiracy ... one agreement cannot be taken to
be several agreements and hence several conspiracies because it
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envisages the violation of several statutes rather than one”);
United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United
States v. Reliford, 27 M.J. 176 (C.M.A. 1988)(summary
disposition). Accordingly, it is appropriate to consolidate the
conspiracy allegations into a single specification.∗ Because the
conduct supporting a conviction on that specification remains
the same as that proved at trial, we affirm the findings as
consolidated.
With respect to the sentence, we conclude that Appellant
suffered no prejudice in the circumstances of this case from the
erroneous use of two conspiracy specifications rather than a
single specification. The conspiracy charge was not the major
component of the findings against Appellant. She also was
convicted of five specifications of forgery, one specification
of attempted larceny, and one specification of larceny. The use
∗
Specifications 1 and 2 of Charge I are consolidated as follows:
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81
Specification: In that Specialist Annie R. Mack, U.S. Army, did, at or near
Fort Hood, Texas, on or about 14 July 1998 conspire with George L. Bailey to
commit offenses under the Uniform Code of Military Justice, to wit: forgery,
by falsely making, with intent to defraud, a certain check in the following
words and figures, to wit: Pay to the Order of George L. Bailey the sum of
$3000.00, dated 14 July 1998 and drawn on the account of the American Red
Cross Emergency Services at The First National Bank of Chicago, which would,
if genuine, apparently operate to the legal harm of another in that $3000.00
would be withdrawn from the American Red Cross account at The First National
Bank of Chicago; and larceny of U.S. currency of a value of $3000.00, the
property of the American Red Cross, and in order to effect the object of the
conspiracy the said Specialist Annie R. Mack did steal an American Red Cross
Emergency Services check # 00347112.
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of two conspiracy specifications rather than one did not require
any additional evidence because the conduct underlying the two
conspiracy specifications was the same as the conduct supporting
the single consolidated specification.
Consolidation of the conspiracy charge into a single
specification would not have had a major impact on the maximum
sentence available at trial in the context of the sentence
adjudged. The maximum confinement announced at trial was forty
years. The maximum confinement with a consolidated conspiracy
specification would have been thirty-five years and six months.
Appellant was sentenced to only two years confinement. In that
context, the error in convicting Appellant of two conspiracy
specifications was not prejudicial as to the sentence. See
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
III. DECISION
The decision of the Army Court of Criminal Appeals as to
Charge I and its specifications (as consolidated), Charge II and
its specification, Additional Charge III and its specification,
Additional Charge IV and its specification, and the sentence is
affirmed.
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