

   
   
   
   U.S. v. Schuler



UNITED STATES, Appellee
v.
Antonio D. SCHULER, Hospital Corpsman Second
Class
U.S. Navy, Appellant
 
 
No. 98-0160
Crim.App. No. 96-1316
 
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued November 19, 1998
Decided May 6, 1999



EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN and CRAWFORD, JJ., joined. GIERKE,
J., filed a concurring opinion.
 
 


Counsel
For Appellant: Lieutenant
Commander R. C. Klant, JAGC, USN (argued); Lieutenant Commander
Rebecca Gilchrist, JAGC, USN, and Lieutenant Syed N. Ahmad,
JAGC, USNR (on brief).
For Appellee: Lieutenant Commander
John A. Maksym, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Captain Paul D. Kovac, USMC (on brief); Colonel Charles
Wm. Dorman, USMC, Commander D. H. Myers, JAGC, USN, Lieutenant
James E. Grimes, JAGC, USNR, and Lieutenant J.R. McFarlane,
JAGC, USNR.
Military Judge: David A. Anderson

 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

 

Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, pursuant to his pleas, of carnal
knowledge of a 14-year-old girl, in violation of Article 120, Uniform Code
of Military Justice, 10 USC § 920. He was sentenced to a bad-conduct
discharge, confinement for 8 months, forfeiture of $250.00 pay per month
for 8 months, and reduction to the lowest enlisted grade. The convening
authority approved these results, and the Court of Criminal Appeals affirmed.
47 MJ 561 (1997).
On appellants petition, we granted review
of the following issue:



WHETHER APPELLANTS PLEA TO CARNAL KNOWLEDGE
IS PROVIDENT WHERE APPELLANTS ANSWERS RAISED THE MISTAKE OF FACT DEFENSE,
ALTHOUGH THE DEFENSE WAS NOT ENACTED UNTIL AFTER TRIAL BUT BEFORE THE CONVENING
AUTHORITYS ACTION.



For the reasons discussed below, we hold that
appellant's guilty pleas are provident.

I.
There are three elements to the offense of
carnal knowledge: (1) "[t]hat the accused committed an act of sexual intercourse
with a certain person"; (2) "[t]hat the person was not the accused's spouse";
and (3) "[t]hat at the time of the sexual intercourse the person was under
16 years of age." Para. 45b(2), Part IV, Manual for Courts-Martial, United
States (1998 ed.); see Art. 120(b). During the providence inquiry,
appellant agreed that his acts violated each of the three elements.
Appellant's statements during the inquiry into
his pleas suggested that, at the time of the offense in August 1994, he
believed that his 14-year-old victim was of college age, as she allegedly
had told him. These statements did not affect the providence of his pleas
because the defense of reasonable mistake of fact was not available at
the time of the offense or the trial. As noted in paragraph 45c(2) of the
1995 edition of the Manual, "[i]t is no defense that the accused is ignorant
or misinformed as to the true age of the female."
Subsequent to appellant's trial, Article 120
was amended to make available an "affirmative defense" to a charge of carnal
knowledge if


(A) the person with whom the accused committed
the act of sexual intercourse had at the time of the alleged offense attained
the age of twelve years; and
(B) the accused reasonably believed that that
person had at the time of the alleged offense attained the age of sixteen
years.


National Defense Authorization Act for Fiscal
Year 1996, § 1113, Pub.L.No. 104-106, 110 Stat. 186, 462 (1996). Under
the amendment, the accused may raise a defense of reasonable mistake of
fact, and the accused has the burden of proof by a preponderance of the
evidence. Art. 120(d)(1) and (2). The amendment did not affect the
elements that the Government is required to prove in order to obtain a
conviction. Compare para. 45b(2), Manual, supra (1995 ed.),
with
para. 45b(2), Manual, supra (1998 ed.). The amendment took
affect on February 10, 1996, after the adjudication of findings and sentence
in the present case but prior to action by the convening authority and
review by the Court of Criminal Appeals.
Appellant does not challenge the decision by
the military judge at the time of trial to accept his pleas as provident.
His position is that, in light of the subsequent amendments to Article
120, the providence of his pleas should be reassessed by appellate authorities.
Appellant relies on the common law doctrine
of abatement. Under that doctrine, if the act underlying a conviction "is
rendered no longer unlawful by statute" during direct review, the proceedings
must be terminated in favor of the appellant. Hamm v. City of Rock Hill,
379 U.S. 306, 312 (1964). The doctrine is a form of statutory interpretation
that may be applied to reflect a legislative "intention to avoid inflicting
punishment at a time when it can no longer further any legislative purpose,
and would be unnecessarily vindictive." Id. at 313.
The application of the common law doctrine
of abatement to federal statutes has been restricted sharply by Congress
in the general federal savings statute, 1 USC § 109. This statute,
entitled "Repeal of statutes as affecting existing liabilities," provides
that


[t]he repeal of any statute shall not
have the effect to release or extinguish any penalty, forfeiture, or
liability
incurred under such statute, unless the repealing Act shall so expressly
provide, and such statute shall be treated as still remaining in force
for the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.


(Emphasis added.)
Congress enacted this statute "to abolish the
common-law presumption that the repeal of a criminal statute resulted in
the abatement of all prosecutions which had not reached final disposition
in the highest court authorized to review them." Warden v. Marrero,
417 U.S. 653, 660 (1974) (quoting Bradley v. United States, 410
U.S. 605, 607 (1973)). The statute applies to amendments as well as repeals.
See,
e.g., United States v. Breier, 813 F.2d 212, 215 (9th
Cir. 1987); United States v. Mechem, 509 F.2d 1193, 1194 n.3 (10th
Cir. 1975)(per curiam).
The Supreme Court has held that the general
savings statute nullifies the common law doctrine of abatement, at least
to the extent that the successor statute "retains the basic offense" and
does not substitute "a right for a crime." Pipefitters Local Union No.
562 v. United States, 407 U.S. 385, 434-35 (1972) (distinguishing Hamm
v. City of Rock Hill, supra, Bell v. Maryland,
378 U.S. 226 (1964), and United States v. Chambers, 291 U.S. 217
(1934)); see United States v. Rumney, 979 F.2d 265, 267 (1st
Cir. 1992)(savings clause fosters congressional policy that "one who violates
the law should not escape sanction by the mere happenstance that the law
was repealed after the criminal act was committed").
The amendment to the statute at issue in the
present case, Article 120, retained the basic offense of carnal knowledge.
The amendment did not alter the elements of proof; nor did it substitute
a right for a crime. The amendment did not grant members of the armed forces
the right to engage in sexual intercourse with children under the age of
16. The amendment provides members of the armed forces with an opportunity
to raise the defense of mistake of fact - no more. That change is not
within the narrow class of legislative actions that would preclude application
of the general federal savings statute, as interpreted by the Supreme Court
in Pipefitters, supra.

II.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
 
 
GIERKE, Judge (concurring):
I agree with the majority opinion. I write
separately, however, to suggest an additional basis for arriving at the
same conclusion.
In deciding whether the savings clause applies,
a number of federal courts have distinguished between substantive and procedural
amendments to criminal statutes. See United States v. Breier,
813 F.2d 212, 216 (9th Cir. 1987); United States v. Mechem,
509 F.2d 1193, 1196 (10th Cir. 1975); United States v. Blue
Sea Line, 553 F.2d 445, 553 (5th Cir. 1977). These decisions
all recognize that the savings clause applies only to substantive changes
in the law.
In my view, the amendment of Article 120 has
both substantive and procedural aspects. It is substantive because it changes
the offense from a strict liability offense to one where lack of knowledge
of the victims age could be exculpatory. It is procedural because it permits
an accused to raise an affirmative defense, allocates the burden of proof,
and establishes the quantum of proof.
I believe that the predominant purpose of the
amendment was substantive. Accordingly, I agree with the majoritys conclusion
that the savings clause is applicable to this case, and that appellants
guilty pleas were provident.
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