

   
   
   
   U.S. v. Pritt



UNITED STATES, Appellee
v.
Aaron P. PRITT, Radioman Seaman
U.S. Navy, Appellant
 
No. 99-0912
Crim. App. No. 98-1660
 
United States Court of Appeals for the Armed
Forces
Argued February 3, 2000
Decided on August 31, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Lieutenant Omar R. Lopez,
JAGC, USNR (argued).
For Appellee: Lieutenant William C. Minick,
JAGC, USNR (argued);Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: Daniel J. DAlesio, Jr.
 
 


This opinion is subject
to editorial correction before publication.


Judge SULLIVAN delivered the opinion of the
Court.
On March 6, 1998, appellant was tried by a
general court-martial composed of a military judge sitting alone at the
Naval Legal Service Office, Mayport, Florida. Pursuant to his pleas, he
was found guilty of flight from apprehension and three specifications of
larceny, in violation of Articles 95 and 121, Uniform Code of Military
Justice, 10 USC §§ 895 and 921, respectively. He was sentenced
to a bad-conduct discharge, confinement for 13 months, total forfeitures,
and reduction to E-1. On August 28, 1998, the convening authority approved
the sentence as adjudged except that he suspended all confinement in excess
of 12 months and made provision for payment of forfeitures to appellants
wife until 6 months from the date of the action. On June 25, 1999, the
United States Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence. United States v. Pritt, 52 MJ 546 (N.M.Ct.Crim.App.
1999).
On October 22, 1999, we granted review of the
following issue:



WHETHER THE LOWER COURT ERRED IN FINDING
THAT THE EFFECTIVE DATE OF THE AMENDMENT TO ARTICLE 95, UCMJ, WAS FEBRUARY
10, 1996, WHEN THE PRESIDENTS EXPRESS DIRECTION IN EXECUTIVE ORDER 13086,
WHICH MADE THE OFFENSE OF FLEEING APPREHENSION PUNISHABLE, SPECIFICALLY
STATES THAT "NOTHING CONTAINED IN THESE AMENDMENTS SHALL BE CONSTRUED TO
MAKE PUNISHABLE ANY ACT DONE OR OMITTED PRIOR TO JUNE 26, 1998, WHICH WAS
NOT PUNISHABLE WHEN DONE OR OMITTED."



We hold that the lower court did not err in concluding
that the effective date of the amendment to Article 95 of the Uniform Code
of Military Justice was February 10, 1996, the date of its enactment. See
Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991); see
generally United States v. Gonzalez, 42 MJ 469, 474 (1995);
see
also United States v. Poole, 47 MJ 17, 18 n.* (1997). Additionally,
Executive Order No. 13,086 does not prohibit prosecution of appellants
conduct which occurred on October 29, 1997, under this amended statute.
Appellant, a 21-year-old sailor with 2 years
of active service was assigned to the USS SAMUEL ELIOT MORISON (FFG 13)
at Mayport, Florida. Pursuant to his pleas, he admitted that in October
of 1997, he broke into the automobile of three other sailors and stole
various items, such as speakers, tape players, a radar detector, a compact
disc changer, and compact discs. He also admitted that on October 29, 1997,
he was discovered by the police while engaging in these criminal acts and
attempted to avoid arrest by fleeing.
Prosecution Exhibit 1, a stipulation of fact,
says in pertinent part:



9. On or about 29 October 1997, while breaking
into Gunners Mate First Class [GM1] Edgar Bartleys vehicle in the Fire
Station Parking lot of Naval Station, Mayport, the accused set off the
car alarm. MA2 Richard Howard and MA3 Kevin Jimenez, Naval Station Mayport
base detectives, were driving in the area of the Naval Station Mayport
Fire Station when they saw the headlights flashing on GM1 Bartleys vehicle.
As the detectives pulled closer to GM1 Bartleys vehicle, they noticed
another car next to it. The detectives then turned on their emergency lights.
The accused saw the base security vehicle coming towards him. The accused
then ran, and entered his vehicle. The accused exited the fire station
parking lot and drove very rapidly toward the main gate. The accused saw
the emergency lights of the base security vehicle flashing behind him.
As the security vehicle pulled closer to him, the accused accelerated in
an attempt to avoid apprehension by the base detectives. A high speed police
pursuit then ensued down Main Street, Naval Station, Mayport, Florida.
When the accused entered the intersection of Massey Avenue and Main Street,
the traffic light in the left-hand lane was red with cars stopped in front
of him. In an attempt to avoid stopping for the red light and being apprehended,
the accused, traveling approximately 40 to 50 miles per hour, swerved into
the lane of oncoming traffic causing traffic in that lane to swerve off
of the road to avoid being hit by the accused. The accused then proceeded
to travel at speeds reaching approximately 70 miles per hour toward the
Naval Station Mayport, Florida main gate. When almost at the main gate,
the accused observed another base security vehicle at the gate about to
join the chase. The accused knew and understood that he could not avoid
police apprehension, and decided to stop his vehicle and surrender.
10. The accused believed and understood that
he was being pursued for apprehension by the base detectives because of
his action of breaking into the automobile of Gunners Mate First Class
Edgar Bartley. The accused also knew and understood that he was being pursued
for apprehension by the base detectives because of his reckless high speed
driving while on Main Street, Naval Station, Mayport, Florida. The accused
believed and understood that the base detectives were pursuing him to stop
his vehicle and place him into physical custody because of [sic] he broke
into the automobile of GM1 Bartley. The accused believed and understood
that the base detectives were pursuing him to stop his vehicle and place
him into physical custody because he was also driving recklessly and at
high speeds on Main Street, Naval Station, Mayport, Florida.
11. The accused knew that the vehicle chasing
him was a law enforcement vehicle driven by law enforcement officers because
he saw the flashing emergency lights and it was clearly identifiable as
a law enforcement vehicle. The accused further knew and understood that
the law enforcement officers pursuing him had the authority and power to
apprehend him.
12. The accused freely admits that his conduct
was wrong, and that he had no legal excuse or justification for his illegal
activities.
 
 



The military judge at appellants court-martial
approved his request for a trial by judge alone. He then explained what
occurred during a conference held pursuant to RCM 802, Manual for Courts-Martial,
United States (1998 ed.):



We discussed the fact that what is being
charged under Charge I is fleeing apprehension, which is a change to Article
95 of the UCMJ. It changed in 1996 some time. It is applicable to Article
95 offenses that would have taken place at the time alleged in this charge
sheet, and as such the only issue was what would be the maximum punishment
if the accused was found guilty for that. We have determined the maximum
punishment is a DD and one year for that particular offense, for the fleeing
apprehension offense. Im sorry, a bad-conduct discharge and one year,
not a DD, a bad-conduct discharge and one year confinement for that offense.
Since the current 1995 Manual for Courts-Martial bound edition does not
have that, we had to look it up from other sources.



(R. 11-12.) He then secured both counsels agreement
that that was "the extent of the 802 conference." (R. 12.)

  
Article 95 of the Uniform Code of Military
Justice, prior to 1996, stated:



Resistance, breach of arrest, and escape
Any person subject to this chapter who resists
apprehension or breaks arrest or who escapes from custody or confinement
shall be punished as a court-martial may direct.



As amended in 1996 it now states:



Resistance, flight, breach of arrest,
and escape
Any person subject to this chapter who--
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or
 confinement; shall be punished
 as a court-martial may direct.





(Emphasis added.)
The 1996 amendment of Article 95 of the Code
was part of the National Defense Authorization Act for Fiscal Year 1996,
Pub. L. No. 104-106, Title XI, § 1112, 110 Stat. 461 (1996); see
also H.R.Conf.Rep. No. 450, 104th Cong., 2d Sess. at 852 (1996), reprinted
in 1996 U.S.C.C.A.N. 378. It was signed into law by the President on
February 10, 1996. 110 Stat. 703 (1996). This legislation contained no
language indicating an effective date for the particular amendment to Article
95 of the Code.
On May 27, 1998, the President signed Executive
Order No. 13,086, 63 Fed. Reg. 30,065, 30,086 (1998), reprinted in
Manual, supra at A25-36 through A25-52, amending the Manual for
Courts-Martial to reflect, among other things, the amendments to the Code
contained in the National Defense Authorization Act for Fiscal Year 1996.
Executive Order No. 13,086 provides that the amendments to the Manual "shall
take effect on May 27, 1998," and then states in pertinent part: "Nothing
contained in these amendments shall be construed to make punishable any
act done or omitted prior to June 26, 1998, which was not punishable when
done or omitted."
Appellant claims that the effective date of
the amended Article 95 of the Code was June 26, 1998, as provided by the
President in Executive Order No. 13,086, which amended provisions in the
Manual for Courts-Martial. He bases his argument on the lack of a specified
effective date in the legislation amending Article 95 of the Code, the
Presidents statement in Executive Order No. 13,086, and United States
v. McCurry, No. 97-1809 (N.M.Ct.Crim.App. December 4, 1998)(unpublished).
*
Appellant asserts that Congress delegated to the President the power to
state an effective date and the President chose June 26, 1998, as the effective
date. We disagree with appellants argument.
The Supreme Court has said: "It is well established
that, absent a clear direction by Congress to the contrary, a law takes
effect on the date of its enactment." Gozlon-Peretz v. United States,
498 U.S. at 404. The legislation that amends Article 95 of the Code contained
no effective date; therefore, it took effect on February 10, 1996, the
day the President signed the legislation. See generally 2 Sutherland
on Statutory Construction § 33.06 at 12 (C. Sands 4th rev. ed.
1986).
We must next turn to the effect of Executive
Order No. 13,086 on the prosecution of appellants offense. We have continually
reiterated that the Uniform Code of Military Justice controls when an executive
order conflicts with part of that Code. See generally United
States v. Gonzalez, 42 MJ 469, 474 (1995); United States v. Mance,
26 MJ 244, 252 (1988). Here, however, we do not believe that there is any
conflict between Executive Order No. 13,086 and the amended Article 95
of the Code. While the President can provide safeguards to servicemembers
that go beyond the Constitution and the Code, see, e.g.,
United
States v. Manuel, 43 MJ 282, 286 (1995), we do not construe Executive
Order No. 13,086 as doing so. It simply does not grant appellant any additional
rights with respect to delayed application of the above-noted amendment
to Article 95 of the Code. Compare United States v. Davis,
47 MJ 484, 486 (1998), with Davis, 47 MJ at 488 (Sullivan,
J., dissenting).
On its face, Executive Order No. 13,086 allows
for the punishment of appellants conduct. The language at issue in the
Executive Order actually states "Nothing contained in these amendments
shall be construed to make punishable any act done or omitted prior to
June 26, 1998, which was not punishable when done or omitted." (Emphasis
added.) However, as noted above, Article 95, a provision of the Uniform
Code of Military Justice and the United States Code, was previously amended
in 1996 and made punishable, at that time, flight from apprehension. Accordingly,
under this congressional statute, appellants conduct was clearly "punishable
when done" in 1997 and its prosecution was not abrogated by this Manual
provision.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* The Court of Criminal Appeals
said: "Although Article 95, UCMJ, 10 USC § 895, has been amended so
that it now makes flight from apprehension a criminal offense, the amended
article does not apply to acts occurring prior to 26 June 1998. In this
case, the appellant took flight from apprehension on 13 May 1997. Thus,
we set aside the finding of guilty to resisting apprehension, and dismiss
Charge IV and its single specification." Unpub. op. at 2.


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