U.S. v. Butler
U.S. Navy–Marine Corps Court of Criminal Appeals. |
1995 WL 934960
September 27, 1995 |
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Not Reported in M.J. |
U.S. v. Butler, Not Reported in M.J. (1995)
Not Reported in M.J., 1995 WL
934960 (N.M.Ct.Crim.App.)
Only the Westlaw citation is currently available.
U.S. Navy–Marine Corps Court of Criminal Appeals.
UNITED STATES
v.
William G. BUTLER, XXX-XX-XXXX
Airman Recruit (E–1), U.S. Naval Reserve.
No. NMCM 95 00753.
Decided 27 Sept. 1995.
Sentence adjudged 19 December 1994. Military Judge:
E.J. Barnett. Review pursuant to Article 66(c), UCMJ, of
Special Court–Martial convened by Commanding Officer,
USS CARL VINSON (CVN 70).
Maj W. JAMES PAYNE, USMCR, Appellate Defense
Counsel
LT JONATHAN W. HARAY, JAGC, USNR, Appellate
Government Counsel
BEFORE W.A. DeCICCO T.D. KEATING E.D. CLARK
AS AN UNPUBLISHED DECISION, THIS
OPINION DOES NOT SERVE AS PRECEDENT.
PER CURIAM.
*1 We have examined the record of trial, the assignments
of error, 1 and the Government's reply thereto, and we have
concluded that the findings and the sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed.
During presentencing, Prosecution Exhibits 1 through 6
were admitted without objection. Record at 31. Prosecution
Exhibits 2 and 4 are Court Memoranda evidencing summary
courts-martial at which the appellant was convicted of
unauthorized absences. The record of trial contains no
evidence that before either summary court-martial the
appellant, (1) was advised of a right to consult with
independent counsel, and (2) affirmatively and personally
waived in writing his right to object to disposition by
summary court-martial. See
238 (C.M.A.1977).
United States v. Booker, 5 M.J.
At the time of the appellant's presentencing hearing, the
recognized prerequisite for admission of a prior summary
court-martial was a showing of compliance with
Booker.
After the appellant's presentencing hearing, this Court
decided that appellate authority had overtaken
implicitly overruled it, citing
Booker and
Nichols v. United States, 511
U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). United
States v. Kelly, 41 M.J. 833 (N.M.Ct.Crim.App.1995)(en
banc), petition granted, ––– M.J. ––––, No. 95–0625 (July
18, 1995)(Order). Applying the reasoning we expressed in
Kelly, we hold that the military judge did not err when
he admitted evidence of the appellant's two prior summary
courts-martial.
An appellant, in claiming ineffective representation by
counsel, must establish both serious deficiency in the
counsel's performance and prejudice arising from that
deficiency.
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Lawson,
40 M.J. 475 (C.M.A.1994); United States v. Sanders, 37
M.J. 116 (C.M.A.), cert. denied, 510 U.S. 1010, 114 S.Ct.
600, 126 L.Ed.2d 565 (1993);
United States v. Scott, 24
M.J. 186 (C.M.A.1987). To satisfy the first requirement, the
allegation of ineffectiveness and the record of trial must
contain evidence which, if unrebutted, would overcome the
presumption of competence.
United States v. Lewis, 42
M.J. 1 (1995). The appellant has failed to surmount the first
tier of a valid claim of ineffective assistance of counsel.
A defense counsel is not required to object to admissible
evidence.
Even had it been error for the military judge to admit
evidence of the two summary courts-martial, the appellant
has not shown that he was prejudiced by their admission.
The appellant was convicted of two periods of unauthorized
absence; one period of 5 months and one period of more
than 11 months. Also, he was convicted of negligently
missing a movement of his ship. During presentencing he
presented evidence of serious emotional problems resulting
from family tragedies. However, there was also evidence that
the command was nearing completion of a hardship discharge
for the appellant when he began a period of unauthorized
absence. Prosecution Exhibit 5. Whatever sympathy the
appellant's tragic family situation may have elicited was
undercut by the appellant's abandonment of his ship and
shipmates for nearly a year-and-a-half. We are satisfied that,
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1
U.S. v. Butler, Not Reported in M.J. (1995)
even without evidence of the two summary courts-martial,
the military judge would have imposed the sentence which he
did—a bad-conduct discharge. The appellant has provided no
basis for a contrary belief.
*2 The appellant's sentence is not inappropriately severe.
Accordingly, the findings of guilty and the sentence, as
approved on review below, are affirmed.
DeCICCO, Senior Judge (concurring in the result):
I dissented in
to follow
Kelly because I believed that we were bound
Booker as long as it remained binding precedent
of our superior court. See Kelly, 41 M.J. at 845 (DeCICCO,
Judge, dissenting in part). The U.S. Court of Appeals for
the Armed Forces has granted the petition for review of our
absence of plain error. Rule for Courts–Martial 801(g); Mil.
R. Evid. 103. Plain error is an error that is not only obvious
and substantial, but it must also have had an unfair prejudicial
impact on the proceedings.
United States v. Fisher, 21
M.J. 327 (C.M.A.1986). We are to use it only sparingly,
solely in those situations where a miscarriage of justice would
otherwise result.
Id.
The case before us clearly does not involve plain error. Even
without the two prior convictions by summary court-martial,
the appellant deserved the sentence he received (which did
not include any confinement or forfeiture of pay) in light of
the fact that he was absent from his ship for 16 months and
missed its movement through neglect. As a result, I do not
find that the error in this case had an unfair prejudicial impact
on the proceedings, and, therefore, no plain error.
decision in
Kelly, and, of course, will have the final word
on the matter unless the U.S. Supreme Court grants certiorari.
I agree completely with the majority's disposition of the other
issues.
In the meantime, I continue to find error when
violated, and I so find in this case.
Accordingly, I concur with the majority in affirming the
Booker is
findings and sentence. 2
This is not the end of the analysis, however. Because trial
defense counsel did not object, the error was waived in the
Footnotes
1
2
I. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBJECT TO THE GOVERNMENT'S OFFER OF TWO
PRIOR, UNCOUNSELED SUMMARY COURT MARTIAL CONVICTIONS.
II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED INTO EVIDENCE IN
AGGRAVATION EVIDENCE OF TWO UNCOUNSELED SUMMARY COURT MARTIAL CONVICTIONS
BECAUSE THE ERROR WAS OBVIOUS, SUBSTANTIAL AND UNFAIRLY PREJUDICED THE
SENTENCE OF A BAD–CONDUCT DISCHARGE. SEE United States v. Scranton, [sic] 35 M.J. 362, cert.
den. 113 S.Ct 1595 (C.M.A.1992).
III. UNDER THE CIRCUMSTANCES OF THIS CASE A BAD–CONDUCT DISCHARGE IS
INAPPROPRIATELY SEVERE.
When citing the
Kelly opinion in its brief, the Government cited it as “ United States v. Kelly, 41 M.J. 833
(N.M.Ct. Rim. Ape 1995) (el bang)” [sic]. While we all make mistakes from time to time, and we all have a lot
of cases to review, I would ask that counsel proofread their pleadings more carefully.
End of Document
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2
Bradshaw v. Unity Marine Corp., Inc.
United States District Court, S.D. Texas, Galveston Division. |
2001 WL 739951
June 27, 2001 |
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Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001) West Headnotes
(p.1)
147 F.Supp.2d 668, 2001 A.M.C. 2358
Attorneys and Law
Firms (p.1)
Texas
ORDER GRANTING
DEFENDANT'S
MOTION FOR
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Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001)
2001 A.M.C. 2358
147 F.Supp.2d 668
United States District Court,
S.D. Texas,
Galveston Division.
John W. BRADSHAW, Plaintiff,
v.
UNITY MARINE CORPORATION,
INC.; Coronado, in rem; and Phillips
Petroleum Company, Defendants.
No. CIV. A. G–00–558.
|
June 27, 2001.
Synopsis
Seaman brought action against dock owner for personal
injuries sustained while working aboard vessel using the
dock. Upon dock owner's motion for summary judgment, the
District Court, Kent, J., held that since maritime law did not
impose a duty on the dock owner to provide a means of
safe ingress or egress to crew member of a vessel using the
dock, Texas' two-year statute of limitations for personal injury
cases, rather than three-year federal statute for maritime
personal injuries, applied to crew member's action against
dock owner for failure to provide a means of safe ingress or
egress to crew member of a vessel using the dock.
Maritime law did not impose a duty on the dock
owner to provide a means of safe ingress or
egress to crew member of a vessel using the dock.
[3]
Seamen
Limitations and Laches
Since maritime law did not impose a duty on the
dock owner to provide a means of safe ingress
or egress to crew member of a vessel using
the dock, Texas' two-year statute of limitations
for personal injury cases, rather that three-year
federal statute for maritime personal injuries,
applied to crew member's action against dock
owner for failure to provide a means of safe
ingress or egress to crew member of a vessel
using the dock.
V.T.C.A., Civil Practice &
Remedies Code § 16.003;
763a.
46 App.U.S.C.A. §
1 Cases that cite this headnote
Attorneys and Law Firms
*669 Harold Joseph Eisenman, Attorney at Law, Houston,
TX, for plaintiff.
Ronald L White, White Mackillop et al, Houston, TX, for
Coronado, and Unity Marine Corporation, Inc.
Motion granted.
Procedural Posture(s): Motion for Summary Judgment.
Charles Wayne Lyman, Giessel Barker & Lyman, Houston,
TX, for Phillips Petroleum Company.
West Headnotes (3)
[1]
Admiralty
Torts in General; Workers'
Compensation
Absent a maritime status between the parties, a
dock owner's duty to crew members of a vessel
using the dock is defined by the application of
state law, not maritime law.
1 Cases that cite this headnote
[2]
Wharves
ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
KENT, District Judge.
Plaintiff brings this action for personal injuries sustained
while working aboard the M/V CORONADO. Now before
the Court is Defendant Phillips Petroleum Company's
(“Phillips”) Motion for Summary Judgment. For the reasons
set forth below, Defendant's Motion is GRANTED.
Personal Injuries
I. DISCUSSION
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1
Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001)
2001 A.M.C. 2358
Plaintiff John W. Bradshaw claims that he was working as a
Jones Act seaman aboard the M/V CORONADO on January
4, 1999. The CORONADO was not at sea on January 4, 1999,
but instead sat docked at a Phillips' facility in Freeport, Texas.
Plaintiff alleges that he “sustained injuries to his body in the
course and scope of his employment.” The injuries are said
to have “occurred as a proximate result of the unsafe and
unseaworthy condition of the tugboat CORONADO and its
appurtenances while docked at the Phillips/Freeport Dock.”
Plaintiff's First Amended Complaint, which added Phillips
as a Defendant, provides no further information about the
manner in which he suffered injury. However, by way of
his Response to Defendant's Motion for Summary Judgment,
Plaintiff now avers that “he was forced to climb on a piling
or dolphin to leave the vessel at the time he was injured.”
This, in combination with Plaintiff's Complaint, represents
the totality of the information available to the Court respecting
the potential liability of Defendant Phillips. 1
Defendant now contends, in its Motion for Summary
Judgment, that the Texas two-year statute of limitations for
personal injury claims bars this action. See
Tex. Civ.
Prac. & Rem.Code § 16.003 (Vernon Supp.2001). Plaintiff
suffered injury on January 4, 1999 and filed suit in this Court
on September 15, 2000. However, Plaintiff did not amend
his Complaint to add Defendant Phillips until March 28,
2001, indisputably more than two-years after the date of his
alleged injury. Plaintiff now responds that he timely sued
Phillips, contending that the three-year federal statute *670
for maritime personal injuries applies to his action. See 46
U.S.C. § 763a.
Before proceeding further, the Court notes that this case
involves two extremely likable lawyers, who have together
delivered some of the most amateurish pleadings ever to
cross the hallowed causeway into Galveston, an effort which
leads the Court to surmise but one plausible explanation.
Both attorneys have obviously entered into a secret pact—
complete with hats, handshakes and cryptic words—to draft
their pleadings entirely in crayon on the back sides of gravystained paper place mats, in the hope that the Court would be
so charmed by their child-like efforts that their utter dearth
of legal authorities in their briefing would go unnoticed.
Whatever actually occurred, the Court is now faced with
the daunting task of deciphering their submissions. With Big
Chief tablet readied, thick black pencil in hand, and a devilmay-care laugh in the face of death, life on the razor's edge
sense of exhilaration, the Court begins.
Summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2552–53, 91 L.Ed.2d 265 (1986). When a motion for
summary judgment is made, the nonmoving party must set
forth specific facts showing that there is a genuine issue
for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Therefore, when a defendant moves for summary judgment
based upon an affirmative defense to the plaintiff's claim, the
plaintiff must bear the burden of producing some evidence
to create a fact issue some element of defendant's asserted
affirmative defense. See
Kansa Reinsurance Co., Ltd. v.
Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1371
(5th Cir.1994);
F.D.I.C. v. Shrader & York, 991 F.2d 216,
220 (5th Cir.1993).
Defendant begins the descent into Alice's Wonderland by
submitting a Motion that relies upon only one legal authority.
The Motion cites a Fifth Circuit case which stands for the
whopping proposition that a federal court sitting in Texas
applies the Texas statutes of limitations to certain state and
federal law claims. See
Gonzales v. Wyatt, 157 F.3d 1016,
1021 n. 1 (5th Cir.1998). That is all well and good—the
Court is quite fond of the Erie doctrine; indeed there is talk
of little else around both the Canal and this Court's water
cooler. Defendant, however, does not even cite to Erie, but to a
mere successor case, and further fails to even begin to analyze
why the Court should approach the shores of Erie. Finally,
Defendant does not even provide a cite to its desired Texas
limitation statute. 2 A more bumbling approach is difficult to
conceive—but wait folks, There's More!
Plaintiff responds to this deft, yet minimalist analytical
wizardry with an equally gossamer wisp of an argument,
although Plaintiff does at least cite the federal limitations
provision applicable to maritime tort claims. See 46 U.S.C. §
763a. Naturally, Plaintiff also neglects to provide any analysis
whatsoever of why his claim versus Defendant Phillips is a
maritime action. Instead, Plaintiff “cites” to a single case from
the Fourth Circuit. Plaintiff's citation, however, points to a
nonexistent Volume “1886” of the Federal Reporter *671
Third Edition and neglects to provide a pinpoint citation
for what, after being located, turned out to be a forty-page
decision. Ultimately, to the Court's dismay after reviewing
the opinion, it stands simply for the bombshell proposition
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2
Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001)
2001 A.M.C. 2358
that torts committed on navigable waters (in this case an
alleged defamation committed by the controversial G. Gordon
Liddy aboard a cruise ship at sea) require the application of
The Fifth Circuit has held that “absent a maritime status
between the parties, a dock owner's duty to crew members
of a vessel using the dock is defined by the application of
general maritime rather than state tort law. See
Wells v.
Liddy, 186 F.3d 505, 524 (4th Cir.1999) (What the ...)?! The
Court cannot even begin to comprehend why this case was
selected for reference. It is almost as if Plaintiff's counsel
chose the opinion by throwing long range darts at the Federal
Reporter (remarkably enough hitting a nonexistent volume!).
And though the Court often gives great heed to dicta from
courts as far flung as those of Manitoba, it finds this case
unpersuasive. There is nothing in Plaintiff's cited case about
ingress or egress between a vessel and a dock, although
counsel must have been thinking that Mr. Liddy must have had
both ingress and egress from the cruise ship at some docking
facility, before uttering his fateful words.
state law, not maritime law.”
Florida Fuels, Inc. v. Citgo
Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993) (holding that
Louisiana premises liability law governed a crew member's
claim versus a dock which was not owned by his employer);
Further, as noted above, Plaintiff has submitted a
Supplemental Opposition to Defendant's Motion. This
Supplement is longer than Plaintiff's purported Response,
cites more cases, several constituting binding authority
from either the Fifth Circuit or the Supreme Court, and
actually includes attachments which purport to be evidence.
However, this is all that can be said positively for Plaintiff's
Supplement, which does nothing to explain why, on the facts
of this case, Plaintiff has an admiralty claim against Phillips
(which probably makes some sense because Plaintiff doesn't).
Plaintiff seems to rely on the fact that he has pled Rule
9(h) and stated an admiralty claim versus the vessel and
his employer to demonstrate that maritime law applies to
Phillips. This bootstrapping argument does not work; Plaintiff
must properly invoke admiralty law versus each Defendant
discretely. See
Debellefeuille v. Vastar Offshore, Inc., 139
F.Supp.2d 821, 824 (S.D.Tex.2001) (discussing this issue
and citing authorities). Despite the continued shortcomings
of Plaintiff's supplemental submission, the Court commends
Plaintiff for his vastly improved choice of crayon—Brick Red
is much easier on the eyes than Goldenrod, and stands out
much better amidst the mustard splotched about Plaintiff's
briefing. But at the end of the day, even if you put a calico
dress on it and call it Florence, a pig is still a pig.
accord
Forrester v. Ocean Marine Indem. Co., 11 F.3d
1213, 1218 (5th Cir.1993). Specifically, maritime law does
not impose a duty on the dock owner to provide a means
of safe ingress or egress. See
Forrester, 11 F.3d at 1218.
Therefore, because maritime law does not create a duty on
the part of Defendant Phillips vis-a-vis Plaintiff, any claim
Plaintiff does have versus Phillips *672 must necessarily
arise under state law. 3 See id.;
332–34.
Florida Fuels, 6 F.3d at
[3] The Court, therefore, under Erie, applies the Texas
statute of limitations. Texas has adopted a two-year statute of
limitations for personal injury cases. See Tex. Civ. Prac. &
Rem.Code § 16.003. Plaintiff failed to file his action versus
Defendant Phillips within that two-year time frame. Plaintiff
has offered no justification, such as the discovery rule or
other similar tolling doctrines, for this failure. Accordingly,
Plaintiff's claims versus Defendant Phillips were not timely
filed and are barred. Defendant Phillips' Motion for Summary
Judgment is GRANTED and Plaintiff's state law claims
against Defendant Phillips are hereby DISMISSED WITH
PREJUDICE. A Final Judgment reflecting such will be
entered in due course.
II. CONCLUSION
After this remarkably long walk on a short legal pier,
having received no useful guidance whatever from either
party, the Court has endeavored, primarily based upon its
affection for both counsel, but also out of its own sense
of morbid curiosity, to resolve what it perceived to be the
legal issue presented. Despite the waste of perfectly good
crayon seen in both parties' briefing (and the inexplicable
[1] [2] Now, alas, the Court must return to grownup land.
odor of wet dog emanating from such) the Court believes it
As vaguely alluded to by the parties, the issue in this case
has satisfactorily resolved this matter. Defendant's Motion for
turns upon which law—state or maritime—applies to each
Summary Judgment is GRANTED.
of Plaintiff's potential claims versus Defendant Phillips. And
despite Plaintiff's and Defendant's joint, heroic efforts to
At this juncture, Plaintiff retains, albeit seemingly to his
obscure it, the answer to this question is readily ascertained.
befuddlement and/or consternation, a maritime law cause
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3
Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668 (2001)
2001 A.M.C. 2358
of action versus his alleged Jones Act employer, Defendant
Unity Marine Corporation, Inc. However, it is well known
around these parts that Unity Marine's lawyer is equally
likable and has been writing crisply in ink since the second
grade. Some old-timers even spin yarns of an ability to type.
The Court cannot speak to the veracity of such loose talk,
but out of caution, the Court suggests that Plaintiff's lovable
counsel had best upgrade to a nice shiny No. 2 pencil or at
least sharpen what's left of the stubs of his crayons for what
remains of this heart-stopping, spine-tingling action. 4
IT IS SO ORDERED.
All Citations
147 F.Supp.2d 668, 2001 A.M.C. 2358
Footnotes
1
2
3
4
Six days after filing his one-page Response, Plaintiff filed a Supplemental Opposition to Phillips Petroleum
Company's Motion for Summary Judgment. Although considerably lengthier, the Supplement provides no
further illumination of the factual basis for Plaintiff's claims versus Phillips.
Defendant submitted a Reply brief, on June 11, 2001, after the Court had already drafted, but not finalized,
this Order. In a regretful effort to be thorough, the Court reviewed this submission. It too fails to cite to either
the Texas statute of limitations or any Fifth Circuit cases discussing maritime law liability for Plaintiff's claims
versus Phillips.
Take heed and be suitably awed, oh boys and girls—the Court was able to state the issue and its resolution
in one paragraph ... despite dozens of pages of gibberish from the parties to the contrary!
In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand—he
could put his eye out.
End of Document
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4
Varda, Inc. v. Insurance Co. of North America
United States Court of Appeals, Second Circuit. |
January 13, 1995 |
45 F.3d 634 |
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Declined to Follow by Cummings v. General Motors Corp., 10th Cir.
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Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634 (2d Cir. 1995)
45 F.3d 634, 31 Fed.R.Serv.3d 1105
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1995 WL 15935
Outline
West Headnotes
(p.1)
Attorneys and Law
Firms (p.2)
Opinion (p.2)
All Citations (p.7)
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
[2]
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Cummings v. General Motors Corp.,
(Okla.), April 28, 2004
4 Cases that cite this headnote
[3]
VARDA, INC., Plaintiff–Appellee,
v.
INSURANCE COMPANY OF NORTH
AMERICA, Defendant–Appellant.
No. 579, Docket 94–7405.
|
Argued Oct. 28, 1994.
|
Decided Jan. 13, 1995.
Synopsis
Insured sued casualty insurer for breach of contract in failing
to pay losses from burglary. Following jury trial before the
United States District Court for the Southern District of New
York, Lawrence M. McKenna, J., judgment was entered on
jury verdict in favor of insured. Insurer appealed. The Court
of Appeals, McLaughlin, Circuit Judge, held that: (1) insurer
failed to preserve sufficiency of evidence issue due to its
failure to renew its preverdict motion for judgment as matter
of law; (2) affirmative defenses of fraud and failure to return
signed transcripts of examination under oath (EUO) were
properly dismissed; and (3) casualty policy did not preclude
award of prejudgment interest under New York law.
Under New York law, failure to file proofs of
loss is material breach of casualty insurance
contract and, if unexcused, precludes recovery
under contract.
2 Cases that cite this headnote
Mode and sufficiency of
4 Cases that cite this headnote
[4]
Federal Courts
presentation
Mode and sufficiency of
Federal Courts
reconsideration
New trial, rehearing, or
Where insurer did not renew its motion for
judgment as matter of law after verdict in
favor of insured, and did not even file motion
for new trial, it waived challenge to denial
of its motion for judgment as matter of law
based on insufficiency of evidence. Fed.Rules
Civ.Proc.Rule 50(b), 28 U.S.C.A.
1 Cases that cite this headnote
[5]
Insurance
Excuses for Delay or Failure
Delay in investigating or resolving claim will
not, by itself, support finding of repudiation
of claim on part of insurer, for purposes of
determining whether insured is excused from
failing to comply with proof of loss provision.
West Headnotes (13)
Insurance
Effect of Noncompliance with
Requirements
Federal Courts
presentation
To preserve for appeal challenge to denial of
preverdict motion for judgment as matter of law,
movant must renew that motion after verdict.
Fed.Rules Civ.Proc.Rule 50(b), 28 U.S.C.A.
Affirmed.
[1]
Excuses for Delay or Failure
If insurer repudiated claim before it demanded
sworn proofs of loss, insured's failure to submit
proofs is excused under New York law.
10th Cir.
45 F.3d 634
United States Court of Appeals,
Second Circuit.
Insurance
2 Cases that cite this headnote
[6]
Federal Courts
Verdict
New trial was not required to prevent manifest
injustice in case in which appellant failed
to preserve for appeal challenge to denial
of preverdict motion for judgment based on
insufficiency of evidence; no manifest injustice
existed in case in which evidence, although not
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1
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
overwhelming, was such that jury's verdict could
not be deemed wholly without legal support.
12 Cases that cite this headnote
[7]
Insurance
4 Cases that cite this headnote
[12]
under New York law.
5001(b).
10 Cases that cite this headnote
Insurance
Weight and Sufficiency
Evidence was insufficient to present jury
question on insured's alleged fraud in inflating
loss estimates for burglary under casualty policy
were insurer introduced no direct evidence that
insured padded its loss, but merely labeled as
“patently incredible” insured's written statement
describing burglary.
[9]
[10]
Insurance
Conflict
Ambiguity, Uncertainty or
N.Y.McKinney's CPLR
3 Cases that cite this headnote
[13]
Federal Civil Procedure
briefs
Arguments and
Federal Civil Procedure
of sanction
Type and amount
Denial of award of costs was appropriate remedy
for successful party's violation of 50–page limit
on briefs. F.R.A.P.Rule 28(g), 28 U.S.C.A.;
U.S.Ct. of App. 2nd Cir.Rule 32, 28 U.S.C.A.
6 Cases that cite this headnote
Under New York law, courts resolve ambiguities
in insurance policy in insured's favor.
Attorneys and Law Firms
Insurance
*635 Robert M. Sullivan, New York City (Ira J. Greenhill,
P.C., of counsel), for defendant-appellant.
Verification
Under New York law, insured's failure to
return signed transcript of examination under
oath (EUO) did not warrant drastic remedy of
dismissal of its suit; policy's “fuzzy language,”
which merely required that insured sign any
EUO transcript, and did not mention returning
it, coupled with insured's failure to demand that
insured return signed transcript and insured's
cooperation during earlier parts of investigation,
did not warrant denial of claim on such basis.
1 Cases that cite this headnote
[11]
Insurance matters
Under New York law, casualty policy provision,
which merely established time when insurer was
required to pay insured's claim, did not address
or preclude award of prejudgment interest
Fraud or False Swearing
To establish affirmative defense of fraud under
New York law, insurer must show that insured
intentionally made material misrepresentations
to insurer.
[8]
Interest
Interest
Insurance matters
Insurer must normally pay prejudgment interest
when it breaches insurance contract under New
York law.
Dennis T. D'Antonio, New York City (Debra Ruth Wolin, Weg
& Meyers, P.C., of counsel), for plaintiff-appellee.
Before: VAN GRAAFEILAND, McLAUGHLIN, and
LEVAL, Circuit Judges.
Opinion
McLAUGHLIN, Circuit Judge:
The Insurance Company of North America (“INA”) issued a
casualty insurance policy to Varda, Inc. (“Varda”), a clothing
and shoe store. The policy required Varda to submit sworn
proofs of loss after filing a claim with INA. When one of its
stores was burglarized, Varda filed a notice of claim, but no
proof of loss. INA undertook an investigation.
Almost a year later, Varda sued INA in the United States
District Court for the Southern District of New York (John
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2
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
E. *636 Sprizzo, Judge ) for failure to pay the insurance.
INA, for the first time, requested proofs of loss, but Varda
did not submit them. INA filed an answer, asserting a number
of defenses, including Varda's failure to submit sworn proofs
of loss. The case went to trial (after being reassigned to
Lawrence M. McKenna, Judge ). The jury found for Varda,
and awarded $110,833.03 in damages. The district court
added $82,478.92 in pre-judgment interest.
INA now appeals, arguing that the district court erroneously
charged the jury that if INA had repudiated the policy, this
excused Varda's non-compliance with various provisions of
the policy. INA's position is that, as a matter of law, there
was no repudiation. INA also contends that the district court
erroneously dismissed two of INA's affirmative defenses.
Finally, INA claims that the insurance policy precludes the
award of pre-judgment interest.
We hold that: (1) because INA did not renew its pre-verdict
motion for judgment as a matter of law, we cannot now set
aside the verdict; (2) the district court properly dismissed
INA's affirmative defenses; and (3) the policy does not
preclude pre-judgment interest. In addition, we deny Varda
its costs on appeal, because its counsel blatantly evaded this
Court's page limit on briefs by the massive abuse of textual
footnotes.
BACKGROUND
INA insured Varda against losses from burglaries. The
insurance policy required Varda to submit proofs of loss after
filing a claim. (Under New York law, however, failure to
submit proofs of loss is not a material breach unless and until
the insured receives and ignores a written demand for the
proofs of loss. N.Y.Ins.Law § 3407(a) (McKinney 1985).)
The policy also required Varda to sign the transcript of any
examination under oath (“EUO”) INA conducted.
One of Varda's stores was burglarized on October 23, 1984.
Varda filed a notice of claim, but no proof of loss; and
INA began an investigation. Cooperating with INA, Varda
conducted an extensive post-loss inventory and compared that
inventory with its pre-loss records.
Although it pored through Varda's books, INA made
no independent effort to determine whether any of the
supposedly stolen inventory remained in the store. Moreover,
INA's claims adjuster, Robert Dwyer, informed Varda that it
had no provable loss and told INA that Varda's claim was
“ludicrous.” Nevertheless, even after almost a year, INA still
had not told Varda whether it would pay the claim.
Fearing that INA would deny the claim, and having been
cautioned by its own adjuster that the policy's one-year period
to sue INA was running out, Varda brought a diversity suit
against INA for failing to pay the insurance. After being sued,
INA then requested, for the first time, that Varda submit sworn
proofs of loss. (Varda had sixty days to do so after INA's
request. See N.Y.Ins.Law § 3407(a).) INA also asked Varda's
principal, Ezra Omri, to appear for an EUO. Omri appeared at
the EUO, but failed to produce sworn proofs of loss. He later
signed the transcript of the EUO, but did not return it to INA.
INA made no additional request for either the proofs of loss
or the EUO transcript. Instead, it filed its answer several days
after the statutory sixty-day period for submitting the proofs
of loss expired. In the answer, INA admitted there was an
insurance contract between the parties, but little else. It also
asserted several affirmative defenses, including failure to file
proofs of loss, fraud, and failure to sign and return EUO
transcripts.
INA then moved for summary judgment on the proof of
loss defense, arguing that Varda's failure to submit proofs of
loss was a material breach of the insurance contract. Varda
opposed the motion, arguing that: (1) INA had waived the
proof of loss requirement because it never sent Varda the
policy language that contained the proof of loss requirement;
and, alternatively, (2) INA had already repudiated the
insurance policy before it requested proofs of loss from Varda.
The district court denied INA's motion. It held that whether
Varda received the proof *637 of loss clause was a question
of fact. Varda, Inc. v. Insurance Co. of North America, 701
F.Supp. 57, 60 (S.D.N.Y.1988). It also held that if Varda had
not received the proof of loss provision, the jury could find
that INA had waived (or was estopped from asserting) the
proof of loss defense. Id. at 59. Finally, it held that neither
INA's delay in investigating Varda's claim nor its adjuster's
comment to INA that the claim was ludicrous amounted to a
repudiation of the policy. Id. at 61.
The case was reassigned to Judge McKenna, and went to trial.
Omri (Varda's principal) testified about the burglary, how he
calculated Varda's loss, and his efforts to get INA to process
Varda's claim. He also testified that INA's claims adjuster,
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3
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
Dwyer, never showed up to investigate the Varda store until
January 16, 1985, almost three months after the loss.
Dwyer testified for INA. He admitted that there had indeed
been a burglary, but he recalled little of his investigation (it
took place over nine years before). Contrary to Omri, he
claimed that he met with Varda's claims adjuster at the store
on October 31, 1984. (On cross-examination, however, he
admitted that his written report of that “meeting” contained no
photographs of the store nor any statement from the insured,
even though he agreed that adjusters usually obtain such
information as soon as possible.) He referred to the January
16, 1985 meeting as his “second” visit to the site. His own
records revealed, however, that he visited the site to take
photographs on November 8, 1984, which would make the
January meeting the third site visit—if Dwyer was telling the
truth about the October 31, 1984 meeting.
At the close of the case, INA moved for judgment as a matter
of law. Varda countered with a motion to dismiss INA's fraud
and EUO transcript defenses. The district court denied INA's
motion, and granted Varda's.
After reviewing a proposed jury charge on repudiation, INA
renewed its motion for judgment as a matter of law. In
addition to the grounds raised earlier, INA now argued that it
had not repudiated the policy. The district court again denied
the motion. It charged the jury, over INA's objection, that
Varda was not obliged to comply with INA's request for
proofs of loss if the jury found that INA had already formed
a definitive intent to deny Varda's claim.
The jury returned a general verdict for Varda, awarding
it $110,833.03 in damages. Varda moved for pre-judgment
interest. The district court granted the motion, tacking on
$82,478.92. INA neither renewed its motion for judgment as
a matter of law, nor moved for a new trial.
INA now appeals. Both parties concede that New York law
governs.
DISCUSSION
Notwithstanding the flurry of issues raised by INA on
appeal, we need address only three questions: (1) whether the
district court erred by instructing the jury that Varda would
be excused from failing to comply with the proof of loss
provision if the jury found that INA had repudiated the policy;
(2) whether INA has any affirmative defenses to Varda's claim
of breach of contract; and (3) whether the insurance contract
bars the award of pre-judgment interest.
I. Repudiation
[1] [2] There is no question that Varda failed to file proofs
of loss, even after INA's written request for them. Under
New York law, this failure is a material breach of contract,
and, if unexcused, precludes recovery under the contract. See
N.Y.Ins.Law § 3407(a) (McKinney 1985); Anthony Marino
Constr. Corp. v. INA Underwriters Ins. Co., 69 N.Y.2d
798, 800, 513 N.Y.S.2d 379, 505 N.E.2d 944 (1987). If,
however, INA had repudiated the claim before it demanded
sworn proofs of loss, Varda's failure to submit the proofs is
excused. See
Igbara Realty Corp. v. New York Property
Ins. Underwriting Ass'n, 63 N.Y.2d 201, 217, 481 N.Y.S.2d
60, 66, 470 N.E.2d 858, 864 (1984). INA argues that, because,
as a matter of law, there was no repudiation, the district court
should never have sent that issue to the jury. We cannot reach
this issue, however, because INA failed to preserve it.
*638 In retrospect, it has now become clear that the core
issue both at trial and on this appeal is the repudiation
question. If INA repudiated its liability under the insurance
policy, it loses. If it did not repudiate, then Varda loses because
it never filed the required proof of loss. Despite the centrality
of this issue, it was treated cavalierly in the trial court and
badly muddled in the appellate briefs.
At the charging conference, Judge McKenna informed the
parties that he would charge the jury on the repudiation issue
and indicated what he intended to say. INA objected to the
charge, not because it was substantively incorrect, but because
INA believed there was insufficient evidence to carry that
issue to the jury. Lest the trial judge miss the point, INA
coupled its objection with a motion for judgment as a matter
of law under Rule 50. Properly analyzed, then, this is an
appeal from the denial of a Rule 50 motion.
[3] [4] To preserve for appeal a challenge to the denial of a
pre-verdict motion for judgment as a matter of law, a movant
must renew that motion after the verdict. Fed.R.Civ.P. 50(b);
see
Johnson v. New York, New Haven & Hartford R.R., 344
U.S. 48, 50, 73 S.Ct. 125, 127, 97 L.Ed. 77 (1952);
Cone
v. West Virginia Pulp & Paper Co., 330 U.S. 212, 214–18, 67
S.Ct. 752, 754–56, 91 L.Ed. 849 (1947); Borger v. Yamaha
Int'l Corp., 625 F.2d 390, 394–95 (2d Cir.1980). INA did not
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4
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
renew its motion for judgment as a matter of law. Indeed, it
did not even file a Rule 59(a) motion for a new trial.
Accordingly, INA has waived its challenge to the denial of
its motion for judgment as a matter of law based on the
insufficiency of the evidence. See
Cone, 330 U.S. at 218,
67 S.Ct. at 756 (“In the absence of such a motion, ... the
appellate court [is] without power to direct the District Court
to enter a judgment contrary to the one it had permitted
to stand.”);
Borger, 625 F.2d at 395 (“A judgment n.o.v.
motion is not a useless formality[;]” without one, an appellate
court cannot pass on the weight of the evidence.).
INA contends that Judge McKenna excused it from renewing
its motion after the verdict because he said at the charge
conference that he regarded INA's positions “as part of the
record preserved for appeal.” Putting aside the question of a
district court's power, if any, to excuse a rule of procedure
that affects this Court's jurisdiction, see
Borger, 625 F.2d
at 395, INA ignores the context of Judge McKenna's remark.
Near the end of the charging conference (which had begun
on the preceding day and had been interrupted by a blizzard),
Varda's counsel had a few minor questions. Before asking
them, he sought assurance that he was not waiving any earlier
objections:
So the record is clear, I am not waiving
any other applications I have made
previously with respect to the charge
by now limiting it to these items, and
I take it, your Honor, all of our prior
discussions were in the context of the
charge conferences, so any issues I
would need to raise for the appeal, if
raised during that discussion, I need
not go through again.
(Joint Appendix at 874). Judge McKenna graciously
responded:
Everything both sides said is part
of the record. I don't think we are
quite as formal as in state court
about objections. Your positions were
enunciated yesterday and I regard
them as part of the record preserved for
appeal.
(Id.) This exchange established only that the attorneys need
not repeat positions asserted the previous day about the jury
charges. It did not excuse the requirements of Rule 50(b) for
renewing a motion for judgment as a matter of law.
[5] [6] Although we have, on occasion, ordered “a new
trial to prevent a manifest injustice” in cases “[w]here a jury's
verdict is wholly without legal support,”
Sojak v. Hudson
Waterways Corp., 590 F.2d 53, 54 (2d Cir.1978) (per curiam
), we see no manifest injustice here. To establish repudiation,
Varda had to show that INA distinctly, unequivocally, and
absolutely refused to perform its obligations under the policy.
Rhodes, Couch on Insurance 2d at § 74:279 (rev. ed. 1983);
see Aryeh v. Westchester Fire Ins. Co., 138 A.D.2d 337, 338,
525 N.Y.S.2d 628, 629 (2d Dep't), appeal denied, *639
73 N.Y.2d 703, 537 N.Y.S.2d 491, 534 N.E.2d 329 (1988).
While a delay in investigating or resolving a claim will not,
by itself, support a finding of repudiation, see
Lentini
Bros. Moving & Storage Co. v. New York Property Ins.
Underwriting Ass'n, 76 A.D.2d 759, 761, 428 N.Y.S.2d 684,
685–87 (1st Dep't 1980) (dismissing insured's suit, in part
because evidence of delay alone created no material dispute
of fact concerning repudiation), aff'd,
53 N.Y.2d 835,
440 N.Y.S.2d 174, 422 N.E.2d 819 (1981), there was more
here than mere delay. INA's own adjuster, Dwyer, doubted
the veracity of the claim, and told INA officials that the
claim was ludicrous. Although Dwyer may not have had the
legal authority to deny Varda's claim, surely INA attached
considerable weight to his recommendation. In addition,
Varda's cross-examination of Dwyer suggested that Dwyer
lied about the date his investigation began. The evidence
thus supported an inference that INA was not conducting its
investigation in good faith, and that it intended to deny the
claim. While this was not overwhelming proof of repudiation,
we cannot say that the “jury's verdict [wa]s wholly without
legal support.”
Sojak, 590 F.2d at 54.
INA also contends that the repudiation issue had already been
definitively resolved by the district court before trial, and,
thus, could not be relitigated at the trial. INA had moved for
summary judgment. Opposing the motion, Varda contended
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Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
that INA had repudiated Varda's claim. The district court was
unimpressed by Varda's evidence of repudiation. Varda, Inc.,
701 F.Supp. at 61. INA interprets this ruling to preclude the
trial court from submitting the repudiation issue to the jury,
but this overstates the effect of the pre-trial ruling.
INA forgets that its motion for summary judgment was
denied. Varda raised repudiation simply as a defense to
INA's motion for summary judgment. The district court
deprecated that defense because it “lack[ed] merit on the
facts presented” by Varda in opposition to INA's motion for
summary judgment. Id. Thus, rather than being barred from
raising repudiation at trial, Varda was merely put on notice
that it would have to proffer additional evidence if it wanted to
get to the jury on the repudiation defense. It heeded the court's
admonition and did produce additional evidence at trial.
II. Affirmative Defenses
INA argues that the district court erred by dismissing its
defenses of (1) fraud and (2) failure to sign and return EUO
transcripts.
A. Fraud
INA contends that the fraud issue should have gone to the
jury. We disagree.
[7] To establish the affirmative defense of fraud, the insurer
must show that the insured intentionally made material
misrepresentations to the insurer. Kaffalos, Inc. v. Excelsior
Ins. Co., 105 A.D.2d 957, 958, 482 N.Y.S.2d 96, 98 (3d Dep't
1984); see also
Saks & Co. v. Continental Ins. Co., 23
N.Y.2d 161, 164–65, 295 N.Y.S.2d 668, 671, 242 N.E.2d
833, 835 (1968) (entire policy void if insured has willfully
concealed or misrepresented any material fact). The insurer
must prove fraud by clear and convincing evidence. See
Ausch v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d
43, 44, 511 N.Y.S.2d 919, 922 (2d Dep't), appeal denied, 70
N.Y.2d 610, 522 N.Y.S.2d 110, 516 N.E.2d 1223 (1987).
[8]
INA's adjuster conceded that Varda's shop was
burglarized. But INA claimed that Varda had inflated the
loss estimates. INA introduced no direct evidence (and little
more than innuendo) that Varda had padded its loss. Instead,
INA, which carried the burden of proof on the fraud issue,
was satisfied to label as “patently incredible” Varda's written
statement describing the burglary. Moreover, there is no
evidence of Varda's intent to defraud, “a necessary element of
the defense.” Deitsch Textiles, Inc. v. New York Property Ins.
Underwriting Ass'n, 62 N.Y.2d 999, 1001, 479 N.Y.S.2d 487,
488, 468 N.E.2d 669, 670 (1984). No reasonable jury could
find fraud on so sparse a record, and the court properly took
that issue away from the jury.
B. Failure to Return Signed Transcripts
INA argues that the policy required Varda to sign and return
transcripts from examinations under oath. We can find no
such obligation in the insurance policy.
*640 [9] [10] Courts resolve ambiguities in an insurance
policy in the insured's favor. See, e.g., Cantanucci v. Reliance
Ins. Co., 43 A.D.2d 622, 623, 349 N.Y.S.2d 187, 191 (3d Dep't
1973), aff'd 35 N.Y.2d 890, 364 N.Y.S.2d 890, 324 N.E.2d
360 (1974). The policy here required Varda, upon request, to
“submit to an examination under oath and sign a copy of the
examination.” The policy is silent or ambiguous, at best, about
whether Varda had to return any EUO transcript it signed.
It certainly does not expressly require Varda to return the
transcript.
We realize, of course, that a signed transcript is of little
value to INA if Varda keeps it. The policy's fuzzy language,
however, coupled with INA's failure to demand that Varda
return the signed transcript and Varda's cooperation during
earlier parts of INA's investigation, persuades us that Varda's
failure to return the signed transcript did not warrant the
drastic remedy of dismissing Varda's suit. Cf.
Pogo
Holding Corp. v. New York Property Ins. Underwriting Ass'n,
73 A.D.2d 605, 606, 422 N.Y.S.2d 123, 124 (2d Dep't 1979)
(insured failed to sign and return an EUO transcript, although
the insurer requested it; rather than have its complaint
dismissed outright, the insured could cure the breach of
contract).
Accordingly, we affirm the dismissal of the fraud and
transcript affirmative defenses.
III. Pre-judgment Interest
INA maintains that, even if it is liable under the policy, its
terms preclude the award of pre-judgment interest. Again, we
find the policy ambiguous.
[11] An insurance company must normally pay prejudgment interest when it breaches an insurance contract. See
United States Fire Ins. Co. v. Federal Ins. Co., 858 F.2d
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6
Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (1995)
31 Fed.R.Serv.3d 1105
limits.” Production & Maintenance Employees' Local 504
v. Roadmaster Corp., 954 F.2d 1397, 1407 (7th Cir.1992).
882, 887–89 (2d Cir.1988) (interpreting
N.Y.Civ.Prac.L.
& R. § 5001(a)), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744,
104 L.Ed.2d 181 (1989); see also L. Smirlock Realty Corp.
v. Title Guarantee Co., 63 N.Y.2d 955, 958, 483 N.Y.S.2d
984, 985, 473 N.E.2d 234, 235 (1984) (awarding insured in a
claim concerning a title defect interest from date title policy
was issued). In New York, “[i]nterest shall be computed from
the earliest ascertainable date the cause of action existed.”
Although the denial of costs may sting, Varda's counsel are
fortunate that they practice *641 law in the late twentieth
century. Four hundred years ago, an English court imprisoned
the pleader of a 120–page replication. Mylward v. Weldon,
(1596), first reported in 1 G. Spence, Equitable Jurisdiction
of the Court of Chancery 375 n.h (Philadelphia, Lea &
Blanchard 1846). In addition, it ordered a warden to:
N.Y.Civ.Prac.L. & R. § 5001(b) (McKinney 1992).
[12] INA focuses on the policy's provision requiring INA to
pay Varda's claim within thirty days after: (1) INA reaches an
agreement with Varda; (2) “the filing of an appraisal award”;
or (3) “the entry of a final court judgment.” Contending
that under this provision, interest does not accrue until thirty
days after the entry of final judgment, INA believes that this
provision trumps New York law.
We reject this construction of the policy. The provision does
not even mention pre-judgment interest. It merely establishes
the time when INA must pay Varda's claim. It does not
address the question of how the amount of the claim is to
be calculated. Construing the ambiguity against INA, as we
must, see, e.g., Cantanucci, 43 A.D.2d at 623, 349 N.Y.S.2d at
190–91, we find that the district court did not err in awarding
pre-judgment interest to Varda.
Id. The warden was then to:
IV. Costs
[13] Costs on appeal are routinely awarded to a successful
party, “unless otherwise ordered.” Fed.R.App.P. 39(a).
Varda's brief in this case is a textbook example of where it
should be otherwise ordered.
There is a fifty-page limit on briefs in the Court of Appeals.
Fed.R.App.P. 28(g). Under Local Rule 32, “footnotes may
be single-spaced,” while text must be double-spaced. Varda's
fifty-page brief is pocked with fifty-eight footnotes, many
over a page long and containing crucial parts of Varda's
arguments. Indeed, approximately 75% of Varda's statement
of facts and argument appear in footnotes. If Varda had
presented its facts and argument in canonical form, i.e., in
the text, its brief would have been roughly seventy pages.
Varda thus brazenly used “textual footnotes to evade page
End of Document
cut a hole in the midst of the same
engrossed Replication ... and put the
said [pleader's] head through the same
hole, and so let the same Replication
hang about his shoulder with the
written side outward.
lead the said [pleader] bareheaded and
barefaced round about Westminster
Hall, whilst the Courts are sitting,
and ... show him at the Bar of every of
the three Courts within the Hall.
Id.
Varda's brief stirs nostalgia for the rigors of the common law.
CONCLUSION
We have carefully reviewed INA's other arguments, and
conclude that they lack merit. The judgment of the district
court is affirmed, and costs to Varda are denied.
All Citations
45 F.3d 634, 31 Fed.R.Serv.3d 1105
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7
U.S. v. Kelly
U.S. Navy–Marine Corps Court of Criminal Appeals. |
68599
February 3, 1995 |
41 M.J. 833 |
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Decision Set Aside by U.S. v. Kelly, U.S. Armed Forces, September 30,
1996
41 M.J. 833
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1995 WL
U.S. v. Kelly, 41 M.J. 833 (1995)
Principles of stare decisis apply in cases
reviewed by military courts of criminal appeals,
and such courts are bound to follow precedent
established by senior courts; any departure, real
or perceived, from decision of senior court must
be fully justified.
KeyCite Red Flag - Severe Negative Treatment
Decision Set Aside by U.S. v. Kelly, U.S. Armed Forces, September 30,
1996
41 M.J. 833
U.S. Navy–Marine Corps
Court of Criminal Appeals.
UNITED STATES
v.
Danny R. KELLY, XXX–XX–XXXX
Fireman Apprentice (E–2), U.S. Navy.
2 Cases that cite this headnote
[3]
Affirmed.
Summary courts-martial
Military Justice
counsel; waiver
Right to confer with
Records of prior nonjudicial punishments
or summary courts-martial are admissible to
enhance sentence in subsequent courts-martial,
without prosecution showing that accused was
advised of right to confer with counsel before
opting for nonjudicial punishment or trial by
summary court-martial.
NMCM 94 00169.
Sentence Adjudged 1 May 1992.
Decided 3 Feb. 1995.
Synopsis
Accused was convicted by special court-martial of two
unauthorized absences. The United States Navy-Marine
Corps Court of Criminal Appeals, Mollison, Senior Judge,
held that records of prior nonjudicial punishments or
summary courts-martial are admissible to enhance sentence in
subsequent courts-martial, without prosecution showing that
accused was advised of right to confer with counsel before
opting for nonjudicial punishment or trial by summary courtmartial.
Military Justice
without counsel
2 Cases that cite this headnote
[4]
Constitutional Law
Military Justice
Proceedings
Due process
“Military due process” is not a source of military
law, nor is it a natural or common-law concept;
“military due process” requires creation of right
by act of Congress.
2 Cases that cite this headnote
West Headnotes (4)
[1]
Military Justice
of evidence
Admission or exclusion
Where defense counsel did not object to evidence
of previous summary court-martial on ground
that there was no showing that accused had been
advised of his right to object to trial by summary
court-martial, or on ground that it had not been
shown that review had been completed, those
objections were waived. R.C.M. 1001(b)(3)(B);
Military Rules of Evid., Rule 103.
7 Cases that cite this headnote
[2]
Military Justice
Stare decisis
*833 Maj R.K. Stutzel, USMC, Appellate Defense Counsel.
CDR Philip D. Cave, JAGC, USN, Appellate Defense
Counsel.
LT Brian B. Rippel, JAGC, USNR, Appellate Government
Counsel.
Before the Court En Banc.
MOLLISON, Senior Judge:
The principal issue in this appeal from a special court-martial
conviction is whether restrictions on admitting records of
prior nonjudicial punishments and summary courts-martial
during the presentencing procedure of a subsequent court-
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
1
U.S. v. Kelly, 41 M.J. 833 (1995)
martial, as stated in
United States v. Booker, 5 M.J.
238 (C.M.A.1977), should continue to be applied in light
of
Nichols v. United States, 511 U.S. 738, 114 S.Ct.
1921, 128 L.Ed.2d 745 (1994). We conclude they should
not. Accordingly, we affirm the appellant's conviction and
sentence.
I.
Consistent with his pleas, the appellant was convicted of two
unauthorized absences. Article 86, Uniform Code of Military
Justice [UCMJ], 10 U.S.C. § 886 (1988). A military judge
sentenced the appellant to confinement for 60 days, forfeiture
of $250.00 pay per month for 3 months, reduction to pay grade
E–1, and a bad-conduct discharge. The convening authority
approved the sentence without modification. UCMJ art. 60,
10 U.S.C. § 860 (1988).
The appellant's case is before this Court for review in
accordance with
*834 Article 66, UCMJ, 10 U.S.C.
§ 866 (1988). We may affirm such findings of guilty and
such part of the sentence as we find correct in law and
fact and determine on the basis of the entire record should
be approved.
UCMJ art. 66(c). We may hold a finding
or sentence incorrect on an error of law only if the error
materially prejudices the substantial rights of the appellant.
UCMJ art. 59(a), 10 U.S.C. § 859(a) (1988).
The appellant assigned three errors. 1 The first and third
assignments of error lack merit and require no discussion.
United States v. Jenkins, 38 M.J. 287 (C.M.A.1993). The
appellant's second assignment of error concerns evidence
of a prior summary court-martial admitted during the
presentencing procedure in this case. That assignment of error
requires further discussion.
In
United States v. Booker, a divided Court of Military
Appeals held that before a record of a prior nonjudicial
punishment or a summary court-martial could be admitted
2
against an accused to enhance the sentence at a subsequent
court-martial, the prosecution must show that:
(1) the accused had been advised of a right to consult
with independent counsel before opting for nonjudicial
punishment or trial by summary court-martial, and
(2) the accused affirmatively and personally waived in writing
his right to object to disposition by nonjudicial punishment or
summary court-martial. 3
5 M.J. at 243–44.
[1] During the presentencing procedure in the appellant's
court-martial, trial counsel offered Prosecution Exhibit 5, a
service record entry evidencing a previous summary courtmartial at which the appellant was awarded reduction in
pay grade and forfeiture of pay based on four offenses
of unauthorized absence and one offense of missing ship's
movement. 4 UCMJ arts. 86, 87, 10 U.S.C. §§ 886, 887
(1988). Trial counsel offered no evidence of a
Booker
advisement or of a waiver of objection to trial by summary
court-martial. Defense counsel objected to Prosecution
Exhibit 5 on grounds there was “no evidence that the accused
at that time was advised of his right to either consult with
counsel or to be represented by counsel at a summary courtmartial, and the court should not consider that as a prior
conviction unless there is some evidence regarding advice
of counsel.” 5 Record at 39. The military judge overruled
the objection and admitted Prosecution Exhibit 5 without
comment.
Id.
*835 If
Booker retains its vitality, the military judge
erred. However, the United States Supreme Court has recently
held in
Nichols v. United States, that uncounseled, yet
constitutionally firm, prior misdemeanor convictions may be
used to enhance sentences in federal criminal trials and a
cautionary advisement at the time of the prior conviction is
not required. Therefore, we specified the following issue for
briefing by the parties:
WHETHER THE REQUIREMENTS
OF
United States v. Booker, 5 M.J.
238 (C.M.A.1977), CONTINUE TO
APPLY IN TRIALS BY COURT–
MARTIAL IN LIGHT OF
Nichols
v. United States, 511 U.S. 738, 114
S.Ct. 1921, 128 L.Ed.2d 745 (1994)?
We also ordered the case be considered by this Court sitting
as a whole in order to secure uniformity of decision and
because the proceedings involved a question of exceptional
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U.S. v. Kelly, 41 M.J. 833 (1995)
importance. Courts of Military Review Rules of Practice and
Procedure, Rule 17(a)Courts of Military Review Rules of
Practice and Procedure, Rule 17(a), 2222 M.J. CXXXIII.
II.
The Constitution empowers Congress “[t]o make Rules for
the Government of the land and naval Forces.” U.S. Const.
art. I, § 8, cl. 14. Congress has exercised that authority
by enacting the Uniform Code of Military Justice,
10
U.S.C. §§ 801– 946 (1988 & Supp. IV 1992). In exercising
its constitutional authority, Congress has established a
comprehensive hierarchy of disciplinary proceedings, and
it has apportioned disciplinary authority among a variety
of officials and courts. It has authorized four proceedings
at which disciplinary violations may be disposed. They
are, from the least severe to the most severe: nonjudicial
punishment, trial by summary court-martial, trial by special
court-martial, and trial by general court-martial. UCMJ arts.
15–
20, 10 U.S.C. §§ 815–820 (1988).
For minor and non-capital offenses, Congress has authorized
the imposition of nonjudicial punishment and trial by
summary courts-martial. UCMJ arts. 15, 20, 10 U.S.C. §§
815, 820 (1988). Nonjudicial punishment is imposed by the
servicemember's commanding officer and generally may not
exceed 30 days correctional custody or 3 days' confinement
on bread and water if the servicemember is attached to or
embarked in a vessel. Nonjudicial punishment may not be
imposed if the member demands trial by court-martial in
lieu thereof, unless the member is attached to or embarked
in a vessel. A servicemember may appeal the imposition
of nonjudicial punishment to the next superior authority.
The summary court-martial is a one-officer proceeding
conducted by a commissioned officer who need not be
a lawyer. The summary court may not award a punitive
discharge or confinement for more than 1 month. No
accused may be brought to trial by summary court-martial
over the accused's objection. A summary court-martial is
automatically reviewed by the authority who convened the
court and by a judge advocate and may be reviewed by the
Judge Advocate General. UCMJ arts. 60, 64, 69, 73, 10 U.S.C.
§§ 860, 864, 869, 873 (1988 & Supp. IV 1992). No further
right of appeal exists with respect to these two proceedings.
The special court-martial is the relative equivalent of the
civilian misdemeanor court; the general court-martial is
the relative equivalent of the civilian felony court. Special
courts-martial are customarily presided over by a military
judge, who must be a lawyer. A special court-martial may
impose confinement up to 6 months and a bad-conduct
discharge. General courts-martial must be presided over by a
military judge. Depending upon the offense, a general courtmartial may impose up to life imprisonment, a dishonorable
discharge, and/or death.
UCMJ arts. 16,
18,
19, 26,
10 U.S.C. §§ 816, 818, 819, 826 (1988). The sentence of any
special or general court-martial is reviewed by the officer who
convened the court. Depending on the sentence, the accused
may appeal to the Judge Advocate General, this Court, the
United States Court of Appeals for the Armed Forces, and the
United States Supreme Court. Additionally, some sentences
may not be executed until approved by the service Secretary
concerned, or by the President. UCMJ arts. 60,
66–67a, 69,
71, 73, 10 U.S.C. §§ 860, 866–867a, 869, 871, 873 (1988
& Supp. IV 1992).
*836 Congress has prescribed when counsel shall be
detailed to represent servicemembers in military disciplinary
proceedings. UCMJ arts. 27,
32, 38, 70, 72, 10 U.S.C.
§§ 827, 832, 838, 870, 872 (1988). Under the Code, the
accused is entitled to the assistance of counsel, without
charge, at an
Article 32 pretrial investigation, special
and general courts-martial, and post-trial proceedings and
appeals thereon. No provision in the Code requires counsel
be detailed to represent an accused at nonjudicial punishment
proceedings or summary courts-martial, grants an accused
the right to consult with counsel before deciding whether
to object to nonjudicial punishment or trial by summary
court-martial, or sets conditions on the admissibility of prior
nonjudicial punishments or summary courts-martial during
the presentencing procedure in a subsequent court-martial.
Congress has delegated to the President and the Secretaries
of the military departments the authority to promulgate
supplemental regulations respecting nonjudicial punishment
and summary courts-martial. UCMJ arts. 15(a),
20,
36(a), 10 U.S.C. §§ 815(a), 820, 836(a) (1988). The
President has exercised that authority as to nonjudicial
punishment by promulgating Part V of the Manual for
Courts–Martial, United States, 1984 [MCM]. He has also
exercised that authority as to trials by summary court-martial
by promulgating Rules for Courts–Martial [R.C.M.] 1301 to
1306, set forth in Chapter XIII of Part II of the MCM.
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U.S. v. Kelly, 41 M.J. 833 (1995)
Nothing in Part V of the MCM gives the servicemember a
right to counsel in nonjudicial punishment proceedings. The
“drafter's analysis” of Part V of the MCM states “that there
is no right to consult with counsel before deciding whether
to demand trial by court-martial,” and “unless otherwise
prescribed by the Secretary concerned, the decision whether
to permit a member to consult with counsel is left to the
commander.” MCM, Part V, ¶ 4 analysis, app. 21, A21–
108. Otherwise, Part V of the MCM provides that unless
the servicemember is attached to or embarked in a vessel,
the member must be notified of the right to demand trial
by court-martial in lieu of nonjudicial punishment, the right
not to be tried by summary court-martial over the member's
objection, and the right to be represented by counsel at a
special or general court-martial. MCM, Part V, ¶ 4a(5). If
the servicemember does not demand trial by court-martial
in lieu of nonjudicial punishment within a reasonable time
after such notice, the nonjudicial punishment hearing may
proceed. MCM, Part V, ¶ 4b. The MCM further provides
that if the servicemember requests personal appearance before
the nonjudicial punishment authority, the servicemember in
some cases is entitled to be accompanied by a spokesperson
arranged for by the member. The spokesperson need not be a
lawyer and is not entitled to travel or similar expenses. The
proceedings need not be delayed to permit the presence of the
spokesperson. MCM, Part V, ¶ 4c(1)(B).
The Secretary of the Navy has promulgated supplementary
regulations on nonjudicial punishment. Manual of the Judge
Advocate General of the Navy, Judge Advocate General
Instruction 5800.7C of 3 Oct 1990 (Change 1 of 6 Aug 1992)
[JAGMAN]. The regulation provides in part:
Legal rights. Prior to the imposition of nonjudicial
punishment, the commanding officer or officer in charge
shall ensure that the individual concerned is fully advised
of all applicable legal rights and that other required action is
taken prior to the hearing.... There is no right for an accused
to consult with counsel prior to nonjudicial punishment;
however, commanding officers are encouraged to permit an
accused to so consult subject to immediate availability of
counsel, the delay involved, or operational commitments
or military exigencies. Failure to provide the opportunity
for an accused to consult with counsel prior to nonjudicial
punishment does not preclude the imposition of nonjudicial
punishment; it merely precludes the admissibility of the
record of nonjudicial punishment in aggravation at a
later court-martial (unless the accused was attached to or
embarked in a vessel at the time of the *837 imposition
of the nonjudicial punishment). 6
JAGMAN 0109a. The same regulation sets out the nature and
extent of the advice to be provided by military lawyers under
these circumstances, as well as a rights-waiver form. Such
advice is limited to an explanation of the legal ramifications
of refusing nonjudicial punishment. It does not equate to
the establishment of an attorney-client relationship, which
military lawyers are cautioned not to establish unless detailed
by proper authority. JAGMAN 0109d(2).
The Rules for Courts–Martial expressly provide “[t]he
accused at a summary court-martial does not have the right
to counsel,” however, if the accused has retained civilian
counsel, “that counsel shall be permitted to represent the
accused at the summary court-martial if such appearance
will not unreasonably delay the proceedings and if military
exigencies do not preclude it.” R.C.M. 1301(e). The Rules
also provide the accused must be informed of the right to
object to trial by summary court-martial and must be given a
reasonable period of time to decide whether to object. R.C.M.
1304.
Congress has also delegated to the President the authority
to prescribe regulations respecting pretrial, trial, and posttrial procedures, including modes of proof. These regulations
may not conflict with the Code but must, so far as the
President considers practicable, apply principles of law and
rules of evidence generally recognized in criminal trials
in federal district courts. UCMJ art. 36(a), 10 U.S.C. §
836(a) (1988). The President has exercised that authority by
promulgating the Rules for Courts–Martial and the Military
Rules of Evidence. R.C.M. 1001 sets forth the courtsmartial presentencing procedure. According to this rule, the
prosecution may introduce evidence of disciplinary actions,
including nonjudicial punishments. R.C.M. 1001(b)(2). It
may also introduce military convictions, including summary
court-martial convictions. Such convictions may be proven
by any evidence admissible under the Military Rules
of Evidence. R.C.M. 1001(b)(3). The Military Rules of
Evidence set forth no
Booker-type requirements.
Finally, Congress has delegated to the President the authority
to prescribe the maximum punishment for those offenses
under the Code that are punishable as “a court-martial
may direct.” UCMJ art. 56, 10 U.S.C. § 856 (1988). The
President has likewise exercised that authority in the Rules for
Courts–Martial and Part IV of the MCM. He has prescribed
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U.S. v. Kelly, 41 M.J. 833 (1995)
sentence limitations for the various offenses, and he has
prescribed circumstances under which the sentence may be
enhanced (escalated) based upon the existence of previous
courts-martial convictions. R.C.M. 1003(d)(1)–(2). A courtmartial conviction includes for these purposes conviction
by summary court-martial. R.C.M. 103(8)(E). None of the
sentence enhancement provisions of the Rules for Court–
Martial includes Booker-type requirements.
III.
In 1973, in
United States v. Alderman, 22 C.M.A. 298,
46 C.M.R. 298, 1973 WL 14505 (1973), a divided Court of
Military Appeals held that evidence of two prior summary
courts-martial convictions was erroneously admitted during
the presentencing procedure to enhance the sentence because
the accused was not represented by counsel at the summary
courts-martial. It based its conclusion that the accused had a
right to counsel at summary courts-martial on Argersinger
v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530
(1972), in which the United States Supreme Court held that
the Sixth Amendment to the Constitution requires an accused
be provided the assistance of counsel in civilian misdemeanor
prosecutions resulting in imprisonment. The Court of Military
Appeals based its conclusion that an uncounseled summary
court-martial conviction could not be admitted to enhance the
sentence in a subsequent trial on
United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), in which
the Supreme Court also held that it was reversible error for a
trial judge *838 to consider, during sentencing, evidence of
convictions that were constitutionally infirm.
In
Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47
L.Ed.2d 556 (1976), however, the Supreme Court settled the
question of whether an accused servicemember is entitled
to the assistance of counsel at a summary court-martial.
There, the Supreme Court explicitly rejected Alderman, the
application of
Argersinger to summary courts-martial,
and claims that the right to the assistance of counsel at
summary courts-martial was required by either the Fifth or
Sixth Amendments to the Constitution. 7 In doing so, it gave
“particular deference to the determination of Congress, made
under its authority to regulate the land and naval forces, U.S.
Const. Art. I, § 8, that counsel should not be provided in
summary courts-martial.”
92.
425 U.S. at 43, 96 S.Ct. at 1291–
Henry appeared to overrule Alderman's holding that a
prior uncounseled summary court-martial conviction could
not be introduced for sentence enhancement purposes;
however, following
Henry, the Court of Military Appeals
granted a petition for review of this Court's decision
in
Booker. There, two prior uncounseled summary
courts-martial had been admitted for sentence enhancement
purposes. Notwithstanding
Henry, Chief Judge Fletcher,
writing for an again-divided Court of Military Appeals, set
forth the
Booker rule, stated above.
5 M.J. at 243–
44. Thus, while the Court retreated from Alderman's holding
that an accused is entitled to the assistance of counsel at
a summary court-martial, it fashioned a somewhat different
right, viz, the right to confer with independent counsel before
opting for nonjudicial punishment or trial by summary courtmartial. It also held in
Booker that in the absence of an
advisement of this right to confer, a nonjudicial punishment or
summary court-martial could not be admitted at a subsequent
trial. The Court based these new procedural requirements
upon the Fifth Amendment, the Sixth Amendment, and again
on Argersinger. 5 M.J. at 243. In particular, Chief Judge
Fletcher opined that “[i]t is in order to give some meaning
to the due process guarantees of the Fifth Amendment that
we must provide limitations on the utilization of evidence of
the imposition of discipline at a summary court-martial in a
subsequent trial.” Id.
The
Booker decision engendered criticism. See United
States v. Nordstrom, 5 M.J. 528, 535 (N.C.M.R.1978)
(Baum, J., concurring). That criticism persists today. See
United States v. Lawer, 41 M.J. 751 (C.G.Ct.Crim.App.1995)
(Baum, C.J.) (questioning
Booker in light of
Nichols
);
United States v. Heath, 39 M.J. 1101, 1103–
04 (C.G.C.M.R.1994) (Baum, C.J.). Nonetheless, the
armed forces have made wholesale changes in processing
nonjudicial punishments and summary courts-martial to meet
the requirements of
Booker, and this Court has endeavored
to apply the
Booker rule. See generally United States v.
Elston, 34 M.J. 1036 (N.M.C.M.R.1992).
IV.
Since
Booker was decided, most appellate activity has
been devoted to limiting its application. For example, the
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U.S. v. Kelly, 41 M.J. 833 (1995)
Court of Military Appeals reconsidered
Booker and
vacated that part of the decision that purported to limit
the jurisdiction of summary courts-martial “ ‘solely ... [to]
minor military offenses unknown in the civilian society,’
” something the Court acknowledged had been incorrectly
stated in its original decision. United States v. Booker, 5 M.J.
246, 248 (C.M.A.1978) (quoting
Booker, 5 M.J. 238 at
242). The Court also held that
Booker did not apply to
summary courts and nonjudicial punishments prior to the date
of the decision, October 17, 1977. United States v. Cannon, 5
M.J. 198 (C.M.A.1978) (per curiam); see also United States
v. Syro, 7 M.J. 431 (C.M.A.1979).
Next, in
United States v. Mathews, 6 M.J. 357
(C.M.A.1979) (per Fletcher, C.J. with Cook & Perry, JJ.,
separately concurring in the result), the Court concluded that
if the record of nonjudicial punishment offered in *839
aggravation did not reflect a waiver of counsel and the right to
demand trial, the military judge had the obligation to conduct
an inquiry on the record to supply the missing information,
but the military judge could conduct an inquiry of the accused
for this purpose. The portion of
Mathews authorizing
examination of the accused, however, was later discarded in
United States v. Sauer, 15 M.J. 113 (C.M.A.1983).
In
United States v. Mack, 9 M.J. 300 (C.M.A.1980), a
majority of the Court retreated from the requirements for
proof of
Booker compliance. There, an Army record
of nonjudicial punishment met most of the
Booker
requirements, however, it did not reflect whether the accused
had actually consulted with a lawyer or waived consultation.
Faced with these circumstances, the Court held the military
judge could engage in a presumption of regularity and admit
the record. Chief Judge Everett devoted the balance of his
lead opinion to an extensive reexamination of the basis for the
Booker rule. He suggested that insofar as the rule prevents
the use of records of uncounseled summary courts-martial
for sentence enhancement purposes, such might be based
on the then-recent decision in
Baldasar v. Illinois, 446
U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), in which
the Supreme Court held that an uncounseled misdemeanor
civilian conviction could not be used to enhance a sentence
even though the prior conviction was constitutionally valid.
Mack, 9 M.J. at 313.
On the question of the admissibility of uncounseled
nonjudicial punishments, Chief Judge Everett observed in
Mack that there was no constitutional basis for the
Booker requirement, however, it could best be justified
as “a practical means” of implementing the congressionally
granted right to decline nonjudicial punishment, just as the
Supreme Court had utilized a right of consultation with
counsel as a means of implementing the Fifth Amendment
privilege against self-incrimination for persons subject to
custodial interrogation.
9 M.J. at 320 (citing
Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966)). He also observed that “service regulations now
grant to many accused persons a right or an opportunity
to consult counsel,” and such regulations stemmed in part
from a memorandum issued by Secretary of Defense Laird
in 1973. 8
9 M.J. at 320–21. He reasoned that “[t]o the
extent that military directives call for counsel to be made
available to accused persons in connection with nonjudicial
punishment, Booker helps enforce those directives.”
at 321. Finally, he observed:
Id.
Indeed, if we were writing now on a completely clean
slate, it might be suitable simply to overrule
United
States v. Booker, as the Government has repeatedly
requested and hold that, since an accused has neither
a constitutional nor a statutory right to consult counsel
or to be represented by counsel in connection with
impending nonjudicial punishment, a record of nonjudicial
punishment need contain no reference to consultation with
counsel. However, at this point it seems unwise to turn back
the clock. This is all the more true since consultation with
counsel allows a better informed exercise of an accused's
right to refuse nonjudicial punishment and also since the
Department of Defense—apparently in response to various
complaints—committed itself several years ago to a policy
of providing an opportunity for accused persons to consult
counsel in connection with proceedings under Article 15.
Id. at 323. Judge Cook, the lone dissenter in
concurred in the disposition of
to the application of
Booker,
Mack, but took exception
Baldasar. Chief Judge Fletcher, the
author of
Booker, dissented.
In United States v. Hayes, 9 M.J. 331 (C.M.A.1980), decided
the same day as
Mack, Chief Judge Everett, with Judge
Cook concurring, held that a Navy record of nonjudicial
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U.S. v. Kelly, 41 M.J. 833 (1995)
punishment met the requirements of
Booker. Chief Judge
Everett reiterated that the accused had neither a constitutional
nor statutory right to consult with counsel in connection with
nonjudicial punishment.
9 M.J. at 332. He also again took
notice of the aforementioned DoD policy memorandum as
well as the fact that the accused had not *840 objected at
trial to the admission of the record.
Id. at 332–33.
Next, in United States v. McLemore, 10 M.J. 238
(C.M.A.1981) (per curiam with Fletcher, J., dissenting), the
Court of Military Appeals held that an accused's failure to
object to a service record entry of a nonjudicial punishment,
introduced without proof of the accused's election to refuse or
accept nonjudicial punishment, waived the issue on appeal.
Then, in United States v. Kuehl, 11 M.J. 126 (C.M.A.1981)
(per curiam with Fletcher, J., dissenting in part), the Court
of Military Appeals further retreated from
Booker when
it held that the military judge did not err in admitting over
defense objection a record of a prior summary court-martial
when the record showed the accused had been advised of his
right to consult with counsel, but did not indicate whether he
had actually consulted or had waived consultation.
The last Court of Military Appeals decision that appears to
have accepted
Booker as a working rule of military law
was decided 11 years ago. United States v. Alsup, 17 M.J. 166
(C.M.A.1984). There, the Court held that a record of a prior
summary court-martial was admissible when the accused was
advised he had a right to be represented by appointed counsel
at the summary court-martial but had not been advised of
his right to consult with counsel before deciding whether to
object to trial by summary court.
V.
[2] An objective examination of the
Booker issue would
suggest there is no constitutional, statutory, or regulatory
right to the assistance of counsel at nonjudicial punishment
proceedings or summary courts-martial, no right to confer
with counsel before deciding whether to opt for such
proceedings, and no right to be advised of any of the foregoing
as a prerequisite to the admission of same at a subsequent
trial. However, the principles of stare decisis apply in cases
reviewed by military courts of criminal appeals, and we are
bound to follow precedent established by our senior Courts.
Accordingly, we are not generally free to ignore the precedent
established by the Court of Military Appeals (now the United
States Court of Appeals for the Armed Forces) or the United
States Supreme Court. United States v. Jones, 23 M.J. 301
(C.M.A.1987);
White.
But, as with all American jurisprudence, military law is ever
changing, and we, as the junior appellate court, believe our
senior Courts expect us to remain vigilant to developments in
constitutional and criminal law to ensure military law remains
current. Accordingly, we believe the Court of Appeals for
the Armed Forces “does not intend us to be bound by
a case decision mindless of the impact that subsequent
developments in the law may have upon it.” 9 United States v.
Martindale, 36 M.J. 870, 878 n. 5 (N.M.C.M.R.1993), aff'd,
40 M.J. 348 (C.M.A.), cert. denied, 513 U.S. 1113, 115 S.Ct.
907, 130 L.Ed.2d 789. (1995). In all events, any departure,
real or perceived, from the decision of our next senior Court
must be fully justified. 10 Accordingly, we *841 must: (1)
carefully consider the basis for the questioned precedent (e.g.,
the Constitution, statutes, or regulations); (2) we must clearly
articulate a change in circumstances warranting departure
(e.g., a recent decision of the United States Supreme Court
re-interpreting a principle of constitutional law upon which
the questioned precedent was based); and (3) though we do
not pretend to be clairvoyant, we must apply the law in
accordance what we believe our senior Courts would now
hold, given a change in circumstances.
VI.
As noted above, the
Booker issue has been highly
contentious. Most decisions subsequent to
Booker have
retreated in some way from it. There does not appear to have
been agreement as to the legal basis for the
Booker rule,
and the basis for the rule, like the rule itself, has also changed.
Such factors alone might suggest the appropriateness of
reexamination after the passage of some time. In any case,
we believe that the former judges of the Court of Military
Appeals based their decision on principles of Fifth and
Sixth Amendment constitutional law,
Argersinger, and
Baldasar. See Booker, 5 M.J. at 243 & n. 20; Booker,
5 M.J. at 248 (Fletcher, C.J., dissenting upon reconsideration);
Syro, 7 M.J. at 433;
Mack, 9 M.J. at 326–28. Insofar as
nonjudicial punishments are concerned, former Chief Judge
United States v. White, 39 M.J. 796 (N.M.C.M.R.1994).
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7
U.S. v. Kelly, 41 M.J. 833 (1995)
Everett may have based his adherence to
aforementioned DoD policy.
Booker on the
Since
Booker, the Supreme Court has expressed
reservations about mechanically applying its constitutional
law holdings on a civilian's right to counsel to the military, see
Davis v. United States, 512 U.S. 452, ––––n. *, 114 S.Ct.
2350, 2354 n. *, 129 L.Ed.2d 362 (1994), and it has recently
reiterated that while the Due Process Clause provides some
measure of protection to defendants in military proceedings,
particular deference must be given to Congress' determination
as to what process is due.
Weiss v. United States, 510 U.S.
163, ––––, 114 S.Ct. 752, 760, 127 L.Ed.2d 1 (1994).
[T]he tests and limitations [of due
process] may differ because of the
military context. The difference arises
from the fact that the Constitution
contemplates that Congress has
plenary control over rights, duties, and
responsibilities in the framework of
the Military Establishment, including
regulations, procedures, and remedies
related to military discipline. Judicial
deference thus *842 is at its
apogee when reviewing congressional
decisionmaking in this area. Our
deference extends to rules relating
to the rights of servicemembers:
Congress has primary responsibility
for the delicate task of balancing the
rights of servicemen against the needs
of the military.... [W]e have adhered
to this principle of deference in a
variety of contexts where, as here,
the constitutional rights of servicemen
were implicated.
115 S.Ct. 200, 130 L.Ed.2d 131 (1994) (citing
Goldman v. Weinberger, 475 U.S. 503, 507–08, 106 S.Ct.
1310, 1313–14, 89 L.Ed.2d 478 (1986)). More significantly,
since the Court of Military Appeals relied upon constitutional
law,
Argersinger, and
decision of
germane.
recently echoed the
Weiss rule of deference, as well as
a policy of deference to military regulations promulgated
in accordance with congressional direction. United States v.
Mitchell, 39 M.J. 131 (C.M.A.), cert. denied, 513 U.S. 874,
Baldasar, the Supreme Court
Nichols, decided June 6, 1994, is particularly
11
In
Nichols, the defendant pled guilty to conspiracy to
possess cocaine with intent to distribute. Under federal
sentencing guidelines, the defendant's sentencing range
was increased based upon a prior, uncounseled state
misdemeanor conviction for driving under the influence
for which the defendant was fined, but not imprisoned.
The defendant objected to the increase on the basis of
Baldasar. The Supreme Court took the opportunity
to revisit
Baldasar and its fractionated holding. As
a consequence, it expressly overruled
Baldasar and
held that a uncounseled misdemeanor conviction, that was
constitutionally valid because imprisonment had not been
awarded, could be used to enhance the sentence in a
subsequent trial for another crime. The Court also explicitly
rejected the defendant's contention that minimum due process
required the defendant be warned that his misdemeanor
conviction might be used for enhancement purposes should
the defendant later be convicted of another crime.
510 U.S.
at ––––, 114 S.Ct. at 1928. Simply put, Nichols means that
if a prior conviction is constitutional, its use in subsequent
sentencing proceedings is constitutional without a special
advisement.
Insofar as the
Booker rule was based on the
Fifth Amendment, Sixth Amendment,
Argersinger, and
Baldasar, it has been undermined by the more recent
decisions of
Id. at –––– – ––––, 114 S.Ct. at 760–61 (citations and
quotations omitted). The Court of Military Appeals has, itself,
Weiss;
Weiss,
Davis, and
Nichols. Insofar as
the
Booker rule, as applied to nonjudicial punishments,
may have come to rest in part upon a 1973 DoD policy
memorandum, we recall that the Court of Military Appeals
has observed since
Booker that “policy typically is not
law. ”
United States v. Sloan, 35 M.J. 4, 9 (C.M.A.1992);
see also United States v. Garwood, 20 M.J. 148, 153–54
(C.M.A.), cert. *843 denied, 474 U.S. 1005, 106 S.Ct. 524,
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8
U.S. v. Kelly, 41 M.J. 833 (1995)
88 L.Ed.2d 456 (1985). More importantly, we note that no
such policy has been implemented by the President as a part of
the MCM. In fact, the “drafter's analysis” to the MCM states
that the current nonjudicial punishment procedure meets the
policy concerns of former-Secretary Laird and that there is
no right to consult with counsel before deciding whether
to demand trial by court-martial. MCM, app. 21, A21–108.
Additionally, such a right to counsel has not been granted by
the Secretary of the Navy. JAGMAN 0109; see also United
States v. Harrell, 5 M.J. 604, 607 (N.C.M.R.1978).
VII.
The clear teaching of
Weiss and other Supreme Court
cases is that interpretations of the Constitution rendered in
the civilian context will not be applied mechanically to the
military, and the greatest deference must be given in these
matters to Congress and to the President to whom Congress
has delegated the authority to establish procedural rules,
rules of evidence, and sentencing criteria for trials by courtsmartial. The allocation of legal resources within the military is
the prerogative of Congress and the President. Congress and
the President have determined with deliberation and precision
at which disciplinary proceedings servicemembers will be
afforded the assistance of counsel and at which they will not.
Such inclusions and exclusions are presumptively intentional.
Cf.
Custis v. United States, 511 U.S. 485, ––––, 114 S.Ct.
1732, 1736, 128 L.Ed.2d 517 (1994).
Neither Congress nor the President has provided for the
assistance of counsel at or before nonjudicial punishment
proceedings or summary courts-martial. The President has
expressly stated that an accused will not be afforded the
assistance of counsel in trials by summary court-martial. The
President has made no provision for the assistance of counsel
in nonjudicial punishment proceedings, and such cannot be
interpreted as an oversight. Cf.
Custis.
Similarly, the President has exercised his statutory authority
in prescribing maximum authorized punishments and
the presentencing procedures. He has authorized the
consideration of prior nonjudicial punishments and summary
courts-martial for these purposes, and neither he nor Congress
has otherwise conditioned the admission of these records
upon prior consultation with counsel. In short, Congress
and the President have acted within their constitutional
prerogatives—prerogatives which we are required to respect.
See United States v. Wesley, 19 M.J. 534, 540–41
(N.M.C.M.R.1984).
[3]
If the
Argersinger line of civilian cases is yet to
be applied to this issue,
Nichols now instructs that an
uncounseled, but constitutionally valid conviction (which
under
Henry includes summary courts-martial whether or
not confinement was awarded) may be used to enhance the
sentence in a subsequent trial without any further advisement
respecting counsel. A fortiori, the same would apply to
nonjudicial punishments.
Finally, we note that in his brief the appellant suggests
that
Booker was based on the ubiquitous “military due
process.” We have found no case in which the Court of
Military Appeals explicitly based the
Booker decision on
“military due process.” Nonetheless, it is true that the term
“military due process” has appeared, and continues to appear,
in the opinions of military appellate tribunals.
United
States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74, 77, 1951 WL
1512 (1951); United States v. Lemaster, 40 M.J. 178, 181
(C.M.A.1994).
[4] The sources of military law include the Constitution,
international law, the statutes governing the military
establishment and regulations issued thereunder. MCM
pmbl., Part I, ¶¶ 1, 3. “Military due process” is not a source
of military law, nor is it a natural or common law concept.
Cf. Wesley, 19 M.J. at 540–41. Rather, it was coined by the
early Court of Military Appeals to describe a pattern of rights
granted by Congress to servicemembers and as a means to
determine when the abrogation of those rights warranted a
remedy:
[W]e look to the acts of Congress to determine whether it
has declared that there are fundamental rights inherent in
the trial *844 of military offenses which must be accorded
to an accused before it can be said that he has been fairly
convicted.
There are certain standards in the military accusatorial
system which have been specifically set by Congress and
which we must demand be observed in the trials of military
offenses. Some of these are more important than others,
but all are of sufficient importance to be a significant
part of military law. We conceive these rights to mold
into a pattern similar to that developed in federal civilian
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9
U.S. v. Kelly, 41 M.J. 833 (1995)
cases. For lack of a more descriptive phrase, we label
the pattern as “military due process” and then point up
the minimum standards which are the framework for this
concept and which must be met before the accused can be
legally convicted. The Uniform Code of Military Justice
contemplates that he be given a fair trial and it commands
us to see that the proceedings in the courts below reach that
standard.
Generally speaking, due process means a course of legal
proceedings according to those rules and principles which
have been established in our system of jurisprudence for
the enforcement and protection of private rights. For our
purposes, and in keeping with the principles of military
justice developed over the years, we do not bottom those
rights and privileges on the Constitution. We base them on
the laws as enacted by Congress. But, this does not mean
that we can not give the same legal effect to the rights
granted by Congress to military personnel as do civilian
courts to those granted to civilians by the Constitution or
by other federal statutes.
As we have stated in previous opinions, we believe
Congress intended, in so far as reasonably possible, to place
military justice on the same plane as civilian justice, and to
free those accused by the military from certain vices which
infested the old system. Believing this, we are required to
announce principles consistent therewith.
....
... Under our powers as an appellate court we can reverse
for errors of law which materially prejudice the substantial
rights of the accused, and we need go no further than to
hold that the failure to afford to an accused any of the
enumerated rights [provided in the UCMJ] denied him
military due process and furnishes grounds for us to set
aside the conviction.
Clay, 1 C.M.A. at 77–78, 1 C.M.R. at 77–78 (emphasis
added). “It is self-evident from the foregoing language that
the threshold requisites to the application of the concept
of ‘military due process' are the existence of an act of
Congress which grants a fundamental right to a military
accused and the denial of that right in the course of a courtmartial proceeding.” United States v. Jerasi, 20 M.J. 719,
723 (N.M.C.M.R.1985), aff'd, 23 M.J. 162 (C.M.A.1986)23
M.J. 162 (C.M.A.1986). “Military due process” has also been
employed to connote outrageous government conduct that
gives rise to the functional equivalent of a recognized defense.
Lemaster; cf. United States v. Wooten, 34 M.J. 141, 148
(C.M.A.1992).
Inasmuch as “military due process” requires the creation
of a right by an act of Congress, the term “military due
process” cannot be used to explain
Booker. Congress has
not granted a right of representation or consultation respecting
nonjudicial punishments or summary courts-martial, nor has
it conditioned their use in the pre-sentencing procedure. The
Booker rule is not consistent with the statutory pattern
of rights Congress and the President have fashioned. The
Booker rule is also not now consistent with the rule in
federal civilian courts. Finally, we note that the failure to
give a
Booker advisement is not outrageous government
conduct.
The Court of Military Appeals did not base the
Booker
rule on “military due process.” Instead, it based the rule on
principles of constitutional law, as it then interpreted them.
Seventeen years later, those principles have been clarified by
the Supreme Court. Armed with that clarification, we are of
the view a different rule must now be applied.
We express no view as to whether it is good policy or bad
policy to mandate a right to confer with counsel before
nonjudicial punishment proceedings or summary courtsmartial. We do not make policy. That prerogative belongs
to others. It is our obligation *845 to carry out our
statutory charge. UCMJ arts. 59, 66, 10 U.S.C. §§ 859,
866 (1988). Based on the foregoing, we have concluded
that a reexamination of
Booker is timely and appropriate,
and upon such reexamination we have found no basis in
law upon which to continue to apply the
Booker rule.
Accordingly, we conclude that the military judge's admission
of the summary court-martial in appellant's case was not in
error. For the reasons noted above, we also believe the United
States Court of Appeals for the Armed Forces would now be
of the same view.
VIII.
The findings and sentence as approved on review below are
affirmed.
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10
U.S. v. Kelly, 41 M.J. 833 (1995)
Court. The proper course for us to take in this case is to follow
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