

   
   
   
   U.S. v. Tualla



IN THE CASE OF
UNITED STATES, Appellant
v.
Joselito C. TUALLA, Electricians Mate Third
Class
U.S. Coast Guard, Appellee
 
No. 99-5002
Crim. App. No. 1079
 
United States Court of Appeals for the Armed
Forces
Argued October 19, 1999
Decided January 31, 2000
EFFRON, J., delivered the opinion of the
Court, in which GIERKE, J., and COX, S.J., joined. CRAWFORD, C.J., filed
a concurring opinion. SULLIVAN, J., filed an opinion concurring in part
and in the result.
 


Counsel
For Appellant: Lieutenant Commander Chris
P. Reilly (argued); Captain Michael J. Devine, Lieutenant
Susan Polizzotto, and Lieutenant Benes Aldana (on brief).
For Appellee: Lieutenant Sandra K. Selman,
USCGR (argued).
Military Judge: Thomas J. Mackell

 
 
THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military
judge sitting alone convicted appellee, pursuant to his pleas, of the following
offenses: two specifications of unauthorized absence, in violation of Article
86, Uniform Code of Military Justice, 10 USC § 886; one specification
of failure to obey a lawful order, in violation of Article 92, UCMJ, 10
USC § 892; one specification of wrongful use of anabolic steroids,
in violation of Article 112a, UCMJ, 10 USC § 912a; three specifications
of assault, in violation of Article 128, UCMJ, 10 USC § 928;
and eight specifications of violating Article 134, UCMJ, 10 USC §
934, which included five specifications of adultery, one specification
of intentionally injuring himself, one specification of obtaining Government
telephone services of a value of $996.60 by false pretense, and one specification
of willfully and wrongfully confining and holding an individual against
her will.
Appellee was sentenced to a bad-conduct discharge,
confinement for 5 months, reduction to pay grade E-2, forfeiture of one-third
of his pay per month for 6 months, and a fine of $996.60, with provision
for further confinement of one month if the fine was not paid. Except
for the fine-enforcement provision, which was disapproved, the convening
authority approved the sentence as adjudged, including the fine and forfeitures
at issue in this appeal.
The Court of Criminal Appeals approved the
findings. The court disapproved the fine, but approved that portion of
the sentence which included a bad conduct discharge, confinement for 5
months, forfeitures of $326 pay per month for 6 months,
and reduction to E-2. 50 MJ at 565.
The General Counsel of the Department of Transportation
certified the case to this Court, requesting review of the following
issues:

I. WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED AS A MATTER OF LAW IN FAILING TO APPLY UNITED STATES v.
HARRIS, 19 MJ 331 (CMA 1985), AS BINDING PRECEDENT.
II. WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED AS A MATTER OF LAW IN HOLDING THAT RCM 1003(b)(3) PREVENTS
A SPECIAL COURT-MARTIAL FROM IMPOSING A SENTENCE TO A FINE IN ADDITION
TO FORFEITURES WHERE THE COMBINED FINE AND FORFEITURES DO NOT EXCEED THE
AMOUNT OF TWO-THIRDS FORFEITURES AUTHORIZED FOR THAT FORUM.

See Art. 67(a)(2), UCMJ, 10 USC §
867(a)(2). We reverse on the ground that RCM 1003(b), Manual for Courts-Martial,
United States (1998 ed.), does not preclude a special court-martial
from imposing a sentence that includes both a fine and forfeitures.

I. BACKGROUND
The President is authorized to establish the
maximum punishment for offenses under the UCMJ, subject to limitations
in the Code applicable to specific offenses and types of courts-martial.
See Art. 56, UCMJ, 10 USC § 856; see also Arts. 18-20,
UCMJ, 10 USC §§ 818-20 (jurisdictional limitations on punishments
that may be imposed by general, special, and summary courts-martial). The
President has authorized courts-martial to impose a variety of punishments,
including those imposed in the present case: forfeiture of pay, fines,
reduction in pay grade, confinement, and punitive separation. RCM 1003(b).
Article 19, UCMJ, 10 USC § 819, provides
broad authority for special courts-martial to "adjudge any punishment not
forbidden" by the UCMJ "under such regulations as the President may prescribe."
The statutory limitations pertinent to the sentence imposed in the present
case under Article 19 preclude a special court-martial from adjudging a
sentence that includes a dishonorable discharge, confinement for more than
6 months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture
of pay for more than 6 months. Article 19 does not expressly limit
the other types of punishment adjudged in this case, including fines and
reductions in grade. See United States v. Sears, 18 MJ 190
(CMA 1984) (special courts-martial are authorized to impose fines).
The President has regulated the adjudication
of fines by courts-martial in RCM 1003(b)(3), which is based on paragraph
126h(3) of the Manual for Courts-Martial, United States, 1969 (Revised
ed.). See 1998 Manual, supra at A21-68.1
In United States v. Harris, 19 MJ 331 (CMA 1985), the accused challenged
the legality of his special court-martial sentence -- which included both
a fine and forfeitures -- on the ground that, under the Manual,
only a general court-martial was authorized to combine fines and forfeitures.
Harris rejected that interpretation of the Manual, concluding that
a fine and forfeitures could be combined in a single summary or special
court-martial sentence, so long as the combined total did not exceed the
amount of the maximum forfeitures that could be adjudged at such a court.
Id. at 332.
RCM 1003(b)(3) of the current Manual employs
terminology similar in pertinent respects to the provision from the 1969
Manual at issue in Harris. See United States v. Gonzalez,
33 MJ 875 (AFCMR 1991); United States v. Czeck, 28 MJ 563 (NMCMR
1989). There have been no amendments to RCM 1003(b)(3) subsequent to our
decision in Harris.

II. DISCUSSION
A. The Holding in Harris
Appellee challenged various aspects of his
sentencing proceeding in his appeal to the Court of Criminal Appeals, but
he did not question the combination of a fine and forfeitures. On its own
motion, the Court of Criminal Appeals, without addressing Harris,
ruled that no such combination could be adjudged by a special court-martial.
49 MJ 556. Upon reconsideration, the court declined to follow Harris
on the ground that the discussion in Harris concerning fines and
forfeitures was "obiter dicta." 50 MJ at 563-64. The court focussed
on the fact that in Harris, the decision to order further proceedings
was based on an unrelated issue involving admissibility of a confession.
The view of Harris adopted by
the Court of Criminal Appeals is too narrow. Our decision and subsequent
order in that case did not reverse or set aside the court-martial sentence,
which combined a fine and forfeitures. Instead, we set aside the pertinent
portions of the lower court's decision and provided the lower court and
convening authority with the option to choose among a variety of further
proceedings, including a complete rehearing, a rehearing on sentence, or
reassessment of the sentence. See 19 MJ at 341; 21 MJ at 173. Each
of these proceedings carried the possibility of a sentence that
included a fine and forfeitures.
Our decision in Harris concerning fines
and forfeitures was not an idle remark made in passing, but was designed
to guide the conduct of all such proceedings. At any of the further proceedings,
it would have been impermissible for the lower court or the military judge
-- in light of our holding Harris -- to prohibit a special court-martial
from imposing a sentence that combined a fine and forfeitures.
The same considerations would pertain if we
were the recipient of a similar remand order from the Supreme Court. Had
the Supreme Court issued Harris, its decision would have precluded
us from prohibiting a combination of a fine and forfeitures during further
proceedings in the case. The lower courts are no less bound by the decisions
of this Court. See United States v. Allbery, 44 MJ 226 (1996).

B. The Interpretation of the Manual in Harris
In the present case, the court below declined
to apply Harris on the ground that the decision, if not dicta,
should be overruled. When considering whether to overrule a precedent,
we are guided by the doctrine of stare decisis. Under this
fundamental principle, adherence to precedent "is the preferred course
because it promotes the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial process." Payne
v. Tennessee, 501 U.S. 808, 827 (1991).
Stare decisis is a principle
of decision making, not a rule, and need not be applied when the precedent
at issue is "unworkable or . . . badly reasoned." Id. As
a general matter, however, "[a]dhering to precedent 'is usually the wise
policy, because in most matters it is more important that the applicable
rule of law be settled than it be settled right.'" Id. (quoting
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)(Brandeis,
J., dissenting)).
In the present case, the court below asserted
that Harris improperly overruled a provision of the Manual for Courts-Martial
by permitting the combination of fines and forfeitures in special courts-martial.
50 MJ at 564-65. We do not agree that Harris overruled the Manual.
We note that the Manual does not expressly prohibit the combination of
fines and forfeitures in special courts-martial. In that context, Harris
should be viewed as a case involving an interpretation of a provision that
is susceptible of varying constructions, including the interpretation offered
by the court below, rather than as a case overturning a provision of the
Manual.
Under the doctrine of stare decisis,
the question is not whether the interpretation offered by the lower court
is plausible; it is whether the Harris decision is so unworkable
or poorly reasoned that it should be overruled. The historical references,
drafting considerations, and policy matters cited by the court below do
not demonstrate that RCM 1003(b)(3), as interpreted in Harris, is
unworkable, or that Harris is so poorly reasoned that it
should be overruled.
In our consideration of whether to abandon
Harris, we have taken into account Executive acquiescence in the
interpretation of RCM 1003(b)(3) set forth in that opinion. Although the
President has prescribed other amendments to the Manual on at least nine
occasions in the nearly 15 years since Harris was decided, including
amendments to RCM 1003, no changes have been made in RCM 1003(b)(3).
For purposes of interpretation, Executive acquiescence
is entitled to considerable weight in view of the relative ease with which
the Manual can be amended. The authority to revise the Manual, an Executive
Order, is vested in a single individual, the President. We are well aware
that the President takes into account a variety of views from differing
sources when considering amendments to the Manual, but none of those sources
has the power to block an amendment when the President believes that a
court improperly overruled or incorrectly interpreted a provision of the
Manual. The President's acquiescence in this Court's interpretation of
a Manual provision over an extended period of time lends strong support
to the proposition that Harris is neither unworkable nor poorly
reasoned. Moreover, such acquiescence casts considerable doubt on the suggestion
by the court below that our Court in Harris overruled a provision
of the Manual.

C. The Effect of Article 58b
We have considered the proposition advanced
by the court below that a prohibition on the combination of fines and forfeitures
by special courts-martial is required by the enactment of Article 58b,
UCMJ, 10 USC § 858b. Pub. L. No. 104-106, Title XI, § 1122, 110
Stat. 463, as amended by Pub. L. No. 104-201, § 1068, 110 Stat. 2655
(1996). Under Article 58b, even if forfeitures are not imposed by a special
court-martial, the servicemember is required to forfeit two-thirds of pay
due during a period of confinement when the sentence includes a bad-conduct
discharge, subject to statutory exceptions.
Because the court below determined that effective
date considerations precluded the application of Article 58b forfeitures
to appellee, 49 MJ at 555, that court was not presented with the question
of whether the combination of a fine and pay forfeited under Article 58b
would be subject to either RCM 1003(b)(3) or the jurisdictional limitation
on special courts-martial of Article 19. In that posture, the enactment
of Article 58b does not provide a basis for rejecting the application of
Harris to the present case.
Moreover, although we decline to offer a definitive
interpretation of the relationship between Article 58b and RCM 1003(b)(3)
in the absence of a specific case or controversy, we note that these two
provisions are not necessarily in conflict. There are many circumstances
in which a sentence could include a fine without implicating Article 58b.
For example, pay is not forfeited under Article 58b if a special court-martial
sentence does not include a bad-conduct discharge, if the sentence does
not include confinement, or if the forfeiture is waived under Article 58b(b).
Likewise, if the Article 58b forfeitures involve a period of less than
6 months' confinement, it is possible that the combination of a fine, adjudicated
forfeitures, and pay forfeited under Article 58b can be adjusted to avoid
implicating RCM 1003(b)(3). Careful action by convening authorities and
staff judge advocates may well moot many of these issues, and it is possible
that the President may issue an amendment to the Manual before any such
issues reach our Court. In any case, it is sufficient to note that enactment
of Article 58b does not lead to the conclusion that RCM 1003(b)(3), as
interpreted by Harris, is unworkable.

III. CONCLUSION
Regardless of whether Harris is viewed
as a binding precedent under Allbery or merely as a reasonable interpretation
of the Manual supported by Executive acquiescence, we see no compelling
reason to reach a different result today. We conclude that the court below
erred as a matter of law in holding that RCM 1003(b)(3) prevents a special
court-martial from imposing a sentence that combines a fine and forfeitures.
Our conclusion answers the second certified question in the affirmative.
In light of that conclusion, the first certified question is moot.
The decision of the United States Coast Guard
Court of Criminal Appeals is affirmed as to findings and set aside as to
sentence. The record of trial is returned to the General Counsel of the
Department of Transportation for remand to that court for further proceedings.
FOOTNOTE:
1 With respect to
the power of the different types of courts-martial to adjudge fines, RCM
1003(b)(3) provides: "Any court-martial may adjudge a fine instead of forfeitures.
General courts-martial may also adjudge a fine in addition to forfeitures.
Special and summary courts-martial may not adjudge any fine in excess of
the total amount of forfeitures which may be adjudged in that case." Paragraph
126h(3) of the 1969 Manual addressed the same matter as follows:
"All courts-martial have the power to adjudge fines instead of forfeitures
in cases involving members of the armed forces. General courts-martial
have the further power to adjudge fines in addition to forfeitures in appropriate
cases. See Section B, 127c. Special and summary courts-martial may
not adjudge any fine in excess of the total amount of forfeitures which
may be adjudged in a case."
 
 
CRAWFORD, Chief Judge (concurring):
The Court of Criminal Appeals erred by failing
properly to apply United States v. Harris, 19 MJ 331 (CMA 1985),
to the facts of this case. While readily conceding the applicability of
stare decisis to this case's resolution, I write again to
remind our lower courts that the doctrine is not a talisman to which blind
allegiance must be given. See United States v. Boyett, 42
MJ 150 (1995); United States v. Allbery, 44 MJ 226, 230 (1996) (Crawford,
J., concurring in part and dissenting in part).
When considering precedent and its applicability
to any case under deliberation, a lower court's initial touchstone is the
facts, and perhaps the scope of prevailing conditions, which gave rise
to the preceding judgment. This is particularly true in cases that involve
evidentiary and procedural rules. See Payne v. Tennessee,
501 U.S. 808, 828 (1991). As Mr. Justice Brandeis cogently explains in
the dissenting opinion cited by the majority:



In the cases which now come before us there
is seldom any dispute as to the interpretation
of any provision. The controversy is usually
over the application to existing conditions
of some well-recognized constitutional
limitation.



Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 410 (1932).
The forum for initiating a new or different
application of facts to existing law is the trial court. The bellwether
to bring changed conditions to the forefront should be either the trial
or defense counsel.
Stare decisis need not lead to
an "imprisonment of reason"1 when facts or
perceptions, or even underlying assumptions, have changed; there is a showing
that a particular decision is unworkable;2
there have been intervening developments in the law, public policy, or
social trends;3 or the historical analysis
underlying the precedent was wrong.4 One could
also argue that cases decided by a narrow margin by this or other appellate
courts should have less precedential value than unanimous ones.5
It is one thing to give precedent an "unceremonious
'heave-ho'" without thoughtful consideration. See Harper v. Virginia
Department of Taxation, 509 U.S. 86, 108-09 (1993) (Scalia, J., concurring)(quoting
Earl M. Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional
Law, 1980 Wis.L.Rev. 467); see also Lee, supra,
n.2 at 648. It is quite another to jettison law when the circumstances
have changed and a former approach "must bow 'to the lessons of experience
and the force of better reasoning.'" Solorio v. United States, 483
U.S. 435, 450 (1987)(quoting Burnet, supra at 406-08 (Brandeis,
J., dissenting)).
Our lower military tribunals are neither free
to ignore mandates from this Court, nor to avoid the application of settled
principles of law to future cases where the facts are substantially similar.
However, these courts, and the parties who litigate before them, must ensure
that military law continues to develop in both a principled and intelligent
manner so our court can "bring its opinions into agreement with experience
and with facts newly ascertained." Vasquez v. Hillery, 474 U.S.
254, 265-66 (1986)(quoting Burnet, supra at 412 (Brandeis,
J., dissenting)); see Maltz, supra at 470.
FOOTNOTES:
1 See United
States v. International Boxing Club of New York, Inc., 348 U.S. 236,
249 (1955)(Frankfurter, J., dissenting).
2
See, e.g., United States v. Dixon, 509 U.S. 688 (1993),
overruling Grady v. Corbin, 495 U.S. 508 (1990), and reverting to
the test under Blockburger v. United States, 284 U.S. 299 (1932),
when examining Double Jeopardy Clause matters. See Thomas R. Lee,
Stare Decisis in Historical Perspective: From the Founding Era to the
Rehnquist Court, 52 Vand. L. Rev. 647 (1999).
3
See William N. Eskridge, Jr., Overruling Statutory Precedents,
76 Geo. L.J. 361 (1988).
4
See Solorio v. United States, 483 U.S. 435 (1987), overruling
O'Callahan v. Parker, 395 U.S. 258 (1969).
5
See Payne v. Tennessee, supra; cf. Mark Alan
Thurman, Note, When The Court Divides: Reconsidering the Precedential
Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419 (1992).
 
 
SULLIVAN, Judge (concurring in part and in
the result):
In this case, the question is directly presented
to our Court - can one of our four lower appellate courts disregard one
of our Court's precedents? This is the core question in the first certified
issue. I would answer it. The majority doesnt. I would answer it because
the answer is important to the viability of the doctrine of stare
decisis in our system of justice in the military. The simple answer
to the question is that our Court's precedents, as a rule, must be followed
by the courts below.* However, in the special
circumstances of United States v. Harris, 19 MJ 331 (CMA 1985),
the court below was not bound or controlled by its reasoning.
United States v. Harris was a
two-judge decision of this Court. One of the judges concurred in the result
and stated that he agreed in the disposition of Issue II. "Disposition"
is a judicial term of art referring to the result, and not to reasoning.
See B.E. Witkin, Manual on Appellate Court Opinions §
83 at 147 (1977) ("After the legal questions have been determined,
the only remaining element of the opinion is a brief statement indicating
the disposition of the appeal. This feature should not be brushed
off too lightly, however, as lack of precision here may make more work
for the appellate court.") (emphasis added), quoting ABA, Section of Judicial
Administration, Committee Report: Internal Operating Procedures of Appellate
Courts at 33 (1961); see generally Ruggero J. Aldisert, Opinion
Writing §§ 9.4 and 9.5 at 135-39 (1990). In my view, Harris
was not binding precedent since it was a one-judge decision on the "fine
and forfeiture" issue (Chief Judge Everett gave his view, and Judge Cox
concurred in the result without stating any reasoning). The court below
could have disregarded Harris, not because the reasoning in it was
dicta, but because the reasoning of only one judge in Harris
cannot become binding precedent of our Court. A majority of our Court
is needed to make binding precedent. In a two-judge court (the status of
our Court at the time of Harris), one judge does not make a majority.
Therefore, I would answer the first certified
question in the negative. On the second certified question, however, I
join the majority in finding error.
FOOTNOTE:
* See United
States v. Jones, 23 MJ 301, 302 (CMA 1987).

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