United States v. Adams , 66 M.J. 255 ( 2008 )

UNITED STATES, Appellee
v.
Antonyo T. ADAMS, Airman
U.S. Air Force, Appellant
No. 07-0796
Crim. App. No. 36226
United States Court of Appeals for the Armed Forces
Argued February 5, 2008
Decided May 13, 2008
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and STUCKY, JJ., joined. ERDMANN, J., filed a dissenting
opinion, in which RYAN, J., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Coretta E. Gray (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief).
Military Judge: David F. Brash and James L. Flanary
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Adams, No. 07-0796/AF
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of being absent without leave and three
specifications of dishonorably failing to maintain sufficient
funds for payment of checks, in violation of Articles 86 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886,
934 (2000). The sentence adjudged by the court-martial and
approved by the convening authority included a bad-conduct
discharge, confinement for 179 days, and reduction to the lowest
enlisted grade. The United States Air Force Court of Criminal
Appeals affirmed. United States v. Adams, No. ACM 36226, 2007
CCA LEXIS 263, 2007 WL 2050718 (A.F. Ct. Crim. App. June 20,
2007) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE COURT-MARTIAL CONVENED BY SPECIAL
ORDER AB-12 HAD PROPER JURISDICTION WHEN THAT
ORDER DID NOT TRANSFER MEMBERS APPOINTED BY PRIOR
ORDERS AB-01, AB-07, AND AB-09, BUT MEMBERS NAMED
IN THOSE ORDERS NONETHELESS SAT AS MEMBERS OF
APPELLANT’S COURT-MARTIAL.
For the reasons set forth below, we affirm the decision of
the United States Air Force Court of Criminal Appeals.
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I. COMPOSITION OF THE COURT-MARTIAL PANEL
1. Initial proceedings
At the outset of his trial, Appellant requested trial
before a court-martial composed of officer and enlisted members.
See Article 25(c)(1), UCMJ, 10 U.S.C. § 825(c)(1) (2000); Rule
for Courts-Martial (R.C.M.) 903(c)(1). Following the
disposition of preliminary motions, the trial counsel provided
the standard announcement of the composition of the court-
martial, noting that the court-martial was convened by Special
Order AB-01, as amended by Special Order AB-07 and Special Order
AB-09. After accounting for members excused by the convening
authority prior to assembly, the trial counsel identified the
remaining nine members. The trial counsel administered the oath
and the military judge announced that the court-martial was
assembled. See R.C.M. 807.
2. The panel after voir dire and challenges
Following completion of voir dire and challenges, the
following four members remained on the panel: Major (MAJ) RDH,
Senior Master Sergeant (SMSgt) BJC, Master Sergeant (MSgt) MAB,
and Tech Sergeant (TSgt) RDG. At that point, the panel
composition fell below the minimum of five members required for
a general court-martial quorum. See Article 16(1)(A), UCMJ, 10
U.S.C. § 816(1)(A) (2000); R.C.M. 805(b). The military judge
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called a recess so that new members could be detailed to the
court-martial. See R.C.M. 505(c)(2)(B).
3. Proceedings after appointment of new members
The following morning, the military judge reconvened the
court-martial for a session out of the presence of the members
under Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000). He began
by providing a detailed description of the procedural setting.
First, the military judge summarized the reasons for the changes
in the composition of the panel:
Counsel, I just wanted to put on the record just for
continuity purposes, so that any reviewing
authorities, should that become necessary, would know
what’s going on.
After we busted quorum yesterday, we did, in fact, put
the court in recess. We now have a new appointing
order appointing additional members to the panel.
Next, the military judge described the procedure for
addressing the voir dire, challenges, and the reading of
charges, both with respect to the new members and the
members previously selected:
What we’ll do is go ahead and bring in those new
members. The members that have already previously
been selected, those four members will not be present;
it will just be the five new members that have been
appointed. We’ll go through the process of reading
the general nature of the charges and going through
the voir dire process. As I stated to counsel
earlier, each side will still, in fact, have a
peremptory challenge since this is a new group of
members that did not go through the original bedding
[sic] process there for the original voir dire.
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Finally, the military judge provided the parties with an
opportunity to object to the appointing order or the
procedure that he had outlined:
MJ: With that in mind, does anyone have an objection
to the appointing order or the way that we are going
to handle that?
CDC: No, Your Honor.
CTC: No, Your Honor.
The military judge then conducted the preliminary
proceedings with the new members, as he had outlined to the
parties. When the new members were brought into the courtroom,
the military judge summarized the situation for the new members:
The parties are present and some of the members are
present.
Members, just to give you an idea of what’s going on,
we began this process yesterday, at which time, we did
what was called a busted quorum, which means we got
some panel members seated, we went under the below
core number which is five; therefore, we had to have
an appointment of new members which is you. We’re now
going through the process to get you seated through
the voir dire process.
The military judge next described what would transpire
after voir dire:
And once that’s accomplished, we’ll then call the
other four members who have already been seated, and
we’ll combine you into one court, and then we’ll bring
you in and begin presentation of the evidence in this
case.
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At the request of the military judge, the trial
counsel provided the following description of the orders
convening the court-martial:
This court-martial is convened by Special Order number
AB-01 . . . as amended by Special Order number AB-07,
. . . Special Order number AB-09, . . . and Special
Order number AB-12 . . . .
Trial counsel then identified the following five members as
present in the courtroom: Lieutenant Colonel (LTC) RDA,
LTC CK, MAJ JWD, 1st Lieutenant (1LT) JLV, 1LT JAD. In
accordance with the procedure outlined by the military
judge, the trial counsel noted that the four members
remaining from the initial proceedings were “absent.”
Referring to his earlier remarks, the military judge
observed that “the court has already been assembled and,
therefore, this is partially reassembly of it at this time
to go through the voir dire process and to give you some
new instructions.” The military judge provided the new
members with the standard preliminary instructions, and
proceeded with voir dire of the new members. At the
completion of voir dire and challenges, the military judge
excused LTC RDA and 1LT JLV.
4. The panel after the second voir dire and challenges
When the full panel assembled together for the first
time, the military judge announced, “For the record, we now
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have both attempts at panels combined and we now have the
seven members that have been accepted by the court.” Four
of the seven members came from the original set of orders:
MAJ RDH, SMSgt BJC, MSgt MAB, and TSgt RDG. The three
remaining members were added during the proceedings after
the recess: LTC CK, MAJ JWD, and 1LT JAD.
With seven members, including four enlisted members,
the panel met the requirements of Article 16, UCMJ, for a
general court-martial to consist of at least five members.
The panel also met the requirements of Article 25, UCMJ,
for the panel to consist of at least one-third enlisted
members upon request of the accused. Subsequently, the
trial proceeded to conclusion in the manner outlined by the
military judge, with no objection by either party.
5. Consideration by the Court of Criminal Appeals
Appellant raised an issue regarding speedy trial
before the Court of Criminal Appeals, but did not challenge
the composition of the court-martial. The court specified
two issues, including the question now before us concerning
the composition of the panel. Adams, 2007 CCA LEXIS 263,
at *2, 2007 WL 2050718, at *1.
The Court of Criminal Appeals observed that Special
Order AB-12 “seems to be a stand-alone order, convening an
entirely new court-martial while failing to transfer the
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members named in the previous set of orders. . . .” Id. at
*22, 2007 WL 2050718, at *9. The court also raised the
issue of whether Appellant’s court-martial had proper
jurisdiction when the members appointed by the prior orders
sat on Appellant’s court-martial. Id. at *2, 2007 WL
2050718, at *1. The court noted that these members would
be “interlopers” if they were not meant to be seated as
members of the panel, creating a fatal jurisdictional
defect. Id. at *23 n.5, 2007 WL 2050718, at *9 n.5.
Likewise, failing to transfer the members named in the
previous set of orders to Special Order AB-12 would have
denied Appellant his right to be tried by a panel composed
of at least one-third enlisted members. Id. at *23, 2007
WL 2050718, at *9.
The Court of Criminal Appeals first considered the language
of Special Order AB-12, which stated: “[a] general court-
martial is hereby convened. It may proceed at Ellsworth AFB, SD
to try such persons as may be properly brought before it. The
court will be constituted as follows . . . .” Id. at *9, 2007
WL 2070718, at *4. Special Order AB-12 then listed the names of
five newly detailed members. The order also stated:
All cases referred to the general court-martial
convened by Special Order AB-1, this headquarters,
dated 8 October 2004, as amended by Special Order AB-
7, this headquarters, dated 24 November 2004, and
Special Order AB-9, this headquarters, dated 8
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December 2004, in which the court has been assembled,
will be brought to trial before the court hereby
convened.
The Court of Criminal Appeals next considered the record of
trial and the intent of the convening authority, as reflected by
the parties’ actions at trial. Id. at *23-*26, 2007 WL 2050718,
at *9. The court concluded that Special Order AB-12 was not
issued to constitute an entirely new and distinct court-martial.
Id. at *24, 2007 WL 2050718, at *9. Instead, the court
determined that Special Order AB-12 was a third amending order,
intended to bring the court-martial up to quorum, while
preserving Appellant’s right to trial by a panel of at least
one-third enlisted members. Id. at *24, 2007 WL 2050718, at *9.
The court observed that the convening authority issued Special
Order AB-12 after quorum was broken. The lower court found
that, “there is no doubt that everyone, including the defense,
knew the five members named in Special Order AB-12 were
additional members selected to bring the court back up to quorum
and were not meant to constitute an entirely new and distinct
court.” Id. at *24, 2007 WL 2050718, at *9. Finally, the court
noted, “[c]learly, there would be no reason for the convening
authority to suddenly start over with a new court after so much
effort had already gone into reaching the point of adding a
third set of members to this panel.” Id. at *25, 2007 WL
2050718, at *9.
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The Court of Criminal Appeals concluded that the errors in
the drafting of Special Order AB-12 were not prejudicial to
Appellant. Id. at *26-*27, 2007 WL 2050718, at *10. The court
affirmed the findings and sentence. Id. at *27, 2007 WL
2050718, at *11.
II. DISCUSSION
This Court’s case law distinguishes between jurisdictional
and administrative errors in the convening of a court-martial.
Jurisdictional error occurs when a court-martial is not
constituted in accordance with the UCMJ. See United States v.
Colon, 6 M.J. 73, 74 (C.M.A. 1978). Jurisdiction depends upon a
properly convened court, composed of qualified members chosen by
a proper convening authority, and with charges properly
referred. Article 25, UCMJ; R.C.M. 201(b); R.C.M. 503; R.C.M.
504; R.C.M. 505. A court-martial composed of members who are
barred from participating by operation of law, or who were never
detailed by the convening authority, is improperly constituted
and the findings must be set aside as invalid. See McClaughry
v. Deming, 186 U.S. 49, 63-65 (1902) (court-martial composed
entirely of Regular Army officers in trial of a volunteer
officer violated the Articles of War and was illegal); United
States v. Harnish, 12 C.M.A. 443, 31 C.M.R. 29 (1961)
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(individual who served on a court-martial without appointment by
the convening authority rendered the proceedings invalid).
Administrative errors in the drafting of a convening order
are not necessarily fatal to jurisdiction, and may be tested for
prejudice under Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
See Colon, 6 M.J. at 74-75 (court-martial conducted without the
presence of four detailed members who had not been properly
relieved was not jurisdictional error, but was prejudicial). In
United States v. Glover, 15 M.J. 419, 422 (C.M.A. 1983), this
Court found no prejudice to the accused where all parties
believed the accused was at trial before a general court-
martial, but the convening order convened a special court-
martial. We have recognized that clerical mistakes are not
necessarily prejudicial. See id. at 421; United States v.
Gebhart, 34 M.J. 189, 192-93 (C.M.A. 1992).
In the present case, we find no jurisdictional defect in
the composition of Appellant’s court-martial. None of the seven
members who participated in the court-martial was an
“interloper.” Each member was selected by the convening
authority to consider these charges against this accused. There
is no evidence that the convening authority excused any of the
members who sat on Appellant’s court-martial. See R.C.M.
505(c)(2)(A). There is also no evidence that the convening
authority withdrew the charges in order to refer them to a new
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court-martial, as provided for in R.C.M. 604. More important,
the record reflects that the five members named in Special Order
AB-12 were selected to bring the court-martial up to quorum and
were not selected to serve as a separately constituted court-
martial. This purpose is underscored by the language of Special
Order AB-12, which provided that “[a]ll cases referred to the
general court-martial convened by Special Order AB-1 . . . as
amended by Special Order AB-7 . . . and Special Order AB-9 . . .
in which the court has been assembled, will be brought to trial
before the court hereby convened.” In that regard, we note that
the convening authority appointed only officer members in
Special Order AB-12 following proceedings in which the accused
had elected trial before a panel that included enlisted members.
Under these circumstances, the order served to bring the panel
up to quorum. In short, the record of trial demonstrates that
the errors in drafting Special Order AB-12 were administrative
in nature, and that the errors did not materially prejudice the
substantial right of the Appellant. See Article 59(a), UCMJ.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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ERDMANN, Judge, with whom RYAN, Judge joins (dissenting):
The power to convene courts-martial and to detail members
to those courts-martial rests solely in those commanders that
Congress, the President, or the Secretary concerned empowered to
take those actions. See Articles 22, 23, 24, 25, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 822, 823, 824, 825
(2000). A convening authority’s actions create the structural
basis of a courts-martial and when the plain language of the
convening authority’s order is clear, complete, and unambiguous,
that order must be given effect. See United States v. Wilson,
65 M.J. 140, 141 (C.A.A.F. 2007). Because the language of
Special Order (SO) AB-12 clearly and unambiguously convened a
new court-martial to which none of the previously detailed court
members were re-detailed, and because the composition of that
newly created court-martial fell below a quorum and lacked
enlisted membership as requested by Adams, the court-martial
suffered a structural error which requires reversal.
There is no dispute as to the sequence and contents of
convening orders in this case. The initial convening order, SO
AB-01, convened a general court-martial and detailed ten
officers to the panel. That order was properly amended by SO
AB-7 which removed five officers and detailed five enlisted
members. Then, SO AB-9 properly amended SO AB-01 relieving
three members and naming three additional members. After voir
United States v. Adams, No. 07-0796/AF
dire only four members remained and the court-martial fell below
quorum. The military judge recessed the court-martial and
directed trial counsel to “get us a couple of names or three
names there for potential new members, keeping in mind the
numbers of officers and enlisted for the quorum[].” In response
the convening authority issued SO AB-12 which, rather than
amending SO AB-01, created a new court-martial. The issue
before the court is whether Adams was tried before a properly
convened court.
“A court-martial is created by a convening order of the
convening authority.” Rule for Courts-Martial (R.C.M.) 504(a).
The convening authority may change the members by order. R.C.M.
505(a). Before assembly of the court, the members may be
changed without showing cause. R.C.M. 505(c)(1)(A). New
members may be added after assembly “only when, as a result of
excusals . . . the number of members of the court-martial is
reduced below a quorum, or the number of enlisted members, when
the accused has made a timely written request for enlisted
members, is reduced below one-third of the total membership.”
R.C.M. 505(c)(2)(B).
Adams’ court-martial had been sworn and assembled.
Consequently, when the membership of Adams’ original court-
martial fell below a quorum as a result of challenges, new
members could have been added to the court-martial convened by
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SO AB-01 just as the convening authority had done in SO AB-7 and
SO AB-9.
That is not, however, what SO AB-12 does. Rather than
detailing new members to a previously convened court-martial, SO
AB-12 very plainly “convened” a general court-martial. SO AB-12
has all the required attributes of an order creating a court-
martial: it designates the type of court-martial and details
members. The order detailed five members to the general court-
martial, the precise number necessary to constitute a general
court-martial. See Article 16(1)(A), UCMJ, § 10 U.S.C.
816(1)(A) (2000). This convening order stands in stark contrast
to an order that merely adds members to a previously convened
court-martial. Notably, this record reflects two prior, proper
amending orders detailing new members to the court convened by
SO AB-01. These amending orders reflect that the convening
authority knew how to add members and support the plain reading
of SO AB-12 that something entirely different was intended by
that order.
There is other language in SO AB-12 that plainly indicates
the creation of a new court-martial. The order states:
All cases referred to the general court-martial
convened by Special Order AB-1, this headquarters,
dated 8 October 2004, as amended by Special Order AB-
7, this headquarters, dated 24 November 2004, and
Special Order AB-9, this headquarters, dated 8
December 2004, in which the court has been assembled,
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will be brought to trial before the court hereby
convened.
Facially this language withdraws the charges from the court-
martial convened by SO AB-01 (as amended) and re-refers them to
the court-martial created by SO AB-12. Charges may be withdrawn
from a court-martial for any reason at any time before findings
are announced. R.C.M. 604(a). Withdrawn charges upon which no
evidence has been introduced at the initial court-martial may be
referred to another court-martial unless withdrawal was for an
improper reason. R.C.M. 604(b). In this instance the apparent
reason for withdrawal and re-referral is to establish a quorum -
– a proper reason. In addition, the withdrawal and re-referral
are consistent with the trial proceedings and the express need
to have a quorum. “[W]hen the plain language of the convening
authority’s action [or order] is facially complete and
unambiguous, its meaning must be given effect.” Wilson, 65 M.J.
at 141. Put simply, an unambiguous convening order means
precisely what it says.
United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003),
reflects a three-step process for reviewing convening orders and
determining whether members were properly detailed to a given
court-martial:
[1] 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
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findings must be set aside. United States v. Harnish,
12 C.M.A. 443, 31 C.M.R. 29 (1961). [2] 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, 1
C.M.A. 603, 5 C.M.R. 31, (C.M.A. 1952). [3] 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).
Id. at 416. Applying a similar analysis here confirms that this
court-martial was defective. In Adams’ case, there is no
ambiguity. SO AB-12 is perfectly clear with respect to which
members were detailed to serve on the court-martial created by
that order. Those individuals who previously remained from SO
AB-01, as amended by SO AB-7 and SO AB-9, were never detailed to
the court-martial convened by SO AB-12. When the membership of
the court-martial created by SO AB-12 fell below five properly
detailed members and when persons not detailed to that court sat
in judgment of Adams, this court-martial was not properly
constituted and reversal is required.
The majority places great weight upon United States v.
Glover, 15 M.J. 419 (C.M.A. 1983), to affirm this case on the
basis of administrative error in the preparation of court-
martial convening orders. In my view, to the extent that Glover
means that clear and unambiguous language in a convening order
can be ignored, that case should be overruled. As applied in
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this case, Glover elevates erroneous interpretations by
individuals other than the convening authority over the clear
expression of the convening authority. As a result, it condones
inattention and sloppy administration in military justice.
There is nothing in the language of SO AB-12 that is
improper, unlawful or ambiguous. Facially, SO AB-12 addressed
and rectified the lack of a quorum. There is no justification
for looking beyond the face of SO AB-12 itself, and there is no
reason not to give the words of the convening authority their
ordinary and plain meaning. This court-martial lacked a
properly detailed quorum and contained interlopers. I therefore
dissent.
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