United States v. Mack

IN THE CASE OF

UNITED STATES, Appellee

v.

Annie R. MACK, Specialist
U.S. Army, Appellant

No. 03-0029
Crim. App. No. 9900146

United States Court of Appeals for the Armed Forces

Argued April 29, 2003

Decided July 1, 2003

EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain Eilin J. Chiang (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and
Captain Mary E. Card (on brief); Major Imogene M. Jamison.

For Appellee: Captain Mark J. Hamel (argued); Lieutenant
Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
Leeker and Major Jennifer H. McGee (on brief).

Military Judge: John P. Galligan

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mack, No. 03-0029/AR

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to her pleas, of attempted

larceny, conspiracy to commit forgery, conspiracy to commit

larceny, larceny, and five specifications of forgery, in

violation of Articles 80, 81, 121, and 123, Uniform Code of

Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 881, 921,

923 (2000), respectively. She was sentenced to a bad-conduct

discharge and confinement for two years. The convening

authority approved the sentence but waived the automatic

forfeitures from April 16 to October 13, 1999, with direction

for payment of those funds to her dependents. See Article 58b,

UCMJ, 10 U.S.C. § 858b (2000). The Court of Criminal Appeals

affirmed in an unpublished opinion. United States v. Mack, Army

No. 9900146 (Army Ct. Crim. App. May 16, 2002).

We granted review of the following issue:

WHETHER TWO ALTERNATE ENLISTED MEMBERS WHO SAT
ON APPELLANT’S COURT-MARTIAL WERE IMPROPERLY
DETAILED, AND WHETHER THEIR PRESENCE WAS
INCONSISTENT WITH THE CONVENING AUTHORITY’S
INTENT, AND THEREBY RENDERED THE PROCEEDINGS A
NULLITY.

In addition, we specified the following issue:

WHETHER THE LOWER COURT ERRED IN AFFIRMING
APPELLANT’S SEPARATE CONVICTIONS FOR
SPECIFICATION 1 (CONSPIRACY TO COMMIT FORGERY)
AND SPECIFICATION 2 (CONSPIRACY TO COMMIT
LARCENY) OF CHARGE I WHERE THERE WAS BUT ONE

2
United States v. Mack, No. 03-0029/AR

AGREEMENT TO COMMIT THE MULTIPLE SUBSTANTIVE
OFFENSES? SEE UNITED STATES V. PEREIRA, 53 M.J.
183 (C.A.A.F. 2000).

On the granted issue, we hold that the record does not

demonstrate that any members of the court-martial panel served

in contravention to the convening authority’s intent. On the

specified issue, we consolidate the two conspiracy

specifications and conclude that Appellant was not otherwise

prejudiced as to the findings and the sentence.

I. THE COURT-MARTIAL PANEL

A. BACKGROUND

1. Trial proceedings

Charges against the Appellant were referred by the

convening authority to a general court-martial convened under

Court-Martial Convening Order Number 10. The convening order

listed primary and alternate members, and set forth a procedure

for modifying the panel’s composition in the event of a request

for trial before a panel that included enlisted members. The

members listed on the convening order were selected personally

by the convening authority.

Pursuant to Article 25(c), UCMJ, 10 U.S.C. § 825(c) (2000),

Appellant requested that at least one-third of the court-martial

panel be composed of enlisted members. The pertinent portion of

the convening order listed the names of six officers and six

3
United States v. Mack, No. 03-0029/AR

enlisted members. The order also provided the following

procedure for making replacements in the event that the number

of enlisted members fell below the one-third statutory quorum

requirement: “Should before trial, or at trial the number of

enlisted members fall below quorum, the first two available

enlisted members in the order listed below are automatically

detailed to the court[.]” The first three names on the list

were: Command Sergeant Major (CSM) S, CSM M, and Sergeant Major

(SGM) S-R. In the course of convening this court-martial, the

convening authority adopted the criteria set forth by the staff

judge advocate (SJA), which noted that the first two available,

alternate enlisted members would be “automatically detailed”

without further action by the convening authority --

(a) if, before trial, the number of enlisted
members of the GCM, BCD SPCM, or SPCM court-
martial panel falls below one-third plus
two, or

(b) if, before trial, the total number of
members of the GCM court-martial panel falls
below nine, or

. . . .

(d) if, before trial, the total number of
members of the GCM court-martial panel falls
below nine as indicated in paragraph
3(e)(5)(b) above, then you also direct that
the first three alternate, not previously
excused, officer members be detailed, or

(e) if, at trial, a panel falls below
enlisted quorum, or

4
United States v. Mack, No. 03-0029/AR

(f) if, at trial, a panel falls below
quorum.

After the military judge called the court-martial to

order, trial counsel announced that “the following persons” had

been “detailed to this court-martial,” and read 11 names into

the record. See Rule for Court-Martial 813(a)(4). The

announcement included two enlisted members from the convening

authority’s list of alternates, CSM M and SGM S-R. Trial

counsel also announced the names of two officers and one

enlisted member who had been excused. Defense counsel did not

make any inquiries regarding the presence of CSM M or SGM R-S or

the excusal of the other members, nor did defense counsel

otherwise object to the composition of the panel. The defense

did not challenge any of the panel members. The panel sat for

the entire trial, through the adjudication of the findings and

the sentence, without objection from the defense.

2. Consideration by the Court of Criminal Appeals

Appellant filed a brief with the Court of Criminal Appeals

challenging the factual and legal sufficiency of two findings.

The Court decided on its own motion to remand the case for an

evidentiary hearing concerning the propriety of the presence of

CSM M and SGM R-S on the court-martial panel. See United States

v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967).

5
United States v. Mack, No. 03-0029/AR

The DuBay hearing was conducted by the military judge who

presided at Appellant’s trial. The evidence received at the

hearing included the convening order and related selection

documents quoted above; a letter pertinent to the reason why CSM

S, the first alternate enlisted member named in the convening

order, had not been detailed; a stipulation of expected

testimony from the convening authority stating that his “intent

as to the mechanisms that would trigger the automatic detailing

of alternate enlisted members [was] fully captured in the

selection documents”; and a stipulation of fact in which both

parties acknowledged that no documentary evidence could be

located concerning the excusal of the three original members or

adding CSM M and SGM S-R to the panel.

The military judge, who made findings of fact and

conclusions of law, found that no one present during the court-

martial had questioned the legitimacy of the court-martial

panel. The military judge also found that “it [was] impossible

to discern what the convening authority's intent was with

respect to the appointment of the alternate enlisted members who

sat on [A]ppellant’s court-martial.” The military judge

concluded as a matter of law that it was the Government’s burden

to demonstrate that the court-martial was properly composed and

that the Government had not met its burden in this case. Based

6
United States v. Mack, No. 03-0029/AR

on that determination, the military judge concluded that the

court-martial lacked jurisdiction.

The Army Court of Criminal Appeals affirmed Appellant’s

conviction in a per curiam opinion. In a footnote, the court

referred to the DuBay hearing, stating that

Command Sergeant Major (CSM) M and Sergeant
Major (SGM) S-R were appointed as alternate
enlisted members to sit on [A]ppellant’s
court-martial if the number of enlisted
members fell below a quorum “before trial,
or at trial[.]” There is no clear
explanation as to how either came to sit on
[A]ppellant’s court-martial, despite the
fact that the panel would not have been
below a quorum without them. After
participating in voir dire with the other
members, neither side challenged CSM M or
SGM S-R. Their presence as members does not
constitute jurisdictional error. Cf. United
States v. Herrington, 8 M.J. 194, 195
(C.M.A. 1980)(a detailed member who had
previously been excused was not challenged
during voir dire and found not to be an
interloper).

Mack, Army No. 9900146, slip op. at 2 n.*.

B. DISCUSSION

The responsibility for the composition of a court-

martial panel rests with the convening authority. Article

25. When a service member exercises the right to request a

panel that includes enlisted members, the convening

authority must ensure compliance with the statutory

requirement that enlisted members compose at least one-

7
United States v. Mack, No. 03-0029/AR

third of the panel. See id. The convening authority may

accomplish this through a variety of actions, including

orders that automatically add specific members to the panel

upon the occurrence of well-defined triggering events.

Only those service members who are detailed to a

specific court-martial can serve on that court-martial

panel. When the convening orders and the record make it

clear that an individual who served on a court-martial

panel was never detailed to do so, we have held that the

court-martial was improperly constituted and the findings

must be set aside. United States v. Harnish, 12 C.M.A.

443, 31 C.M.R. 29 (1961). When the record reflects an

ambiguity as to whether an individual was detailed to serve

at a particular court-martial, we look to the intent of the

convening authority with respect to service of that member

on that court-martial panel. United States v. Padilla, 5

C.M.R. 31, (C.M.A. 1952). When there is an ambiguity but

no evidence that the convening authority’s intent was to

the contrary, “the construction of the convening orders by

the participants of [the] trial is controlling.” United

States v. Gebhart, 34 M.J. 189, 193 (C.M.A. 1992).

In the present case, the convening authority included both

CSM M and SGM S-R on the convening order for this court-martial

panel, and provided that they would be “automatically detailed”

8
United States v. Mack, No. 03-0029/AR

to the court-martial upon the occurrence of any of a defined set

of triggering events. There was no requirement for trial

counsel to address the circumstances of a triggering event in

more detail absent a request that the trial counsel set forth

the details of the triggering event. Trial counsel's only

obligation was to state on the record that the members were

properly detailed. See Gebhart, 34 M.J. at 193 (the prosecution

is not obligated to place in the record the precise sequence of

events leading to changes in the composition of the court-

martial where there is no evidence that convening authority’s

intent was frustrated and the actions of the parties at trial

are consistent with that assumption).

The present case is distinguishable from Harnish, 12 C.M.A.

at 444, 31 C.M.R. at 30 (Ferguson, J., concurring), where an

unambiguous record demonstrated that the two "interlopers," who

were not included in the applicable convening order, had not

been selected by the convening authority to sit on the court-

martial to which the case had been reassigned. This case also

is distinguishable from Padilla and Gebhart, where the wording

of the convening orders created doubt as to the intent of the

respective convening authorities. Here, there is no doubt as to

what the convening authority intended, nor is there any doubt

that the convening authority issued an order adding the two

members to Appellant’s court-martial panel upon the occurrence

9
United States v. Mack, No. 03-0029/AR

of a specific triggering event. When a convening authority

refers a case for trial before a panel identified in a specific

convening order, and the convening order identifies particular

members to be added to the panel upon a triggering event, the

process of excusing primary members and adding the substitute

members involves an administrative, not a jurisdictional matter.

Absent objection, any alleged defects in the administrative

process are tested for plain error. See United States v. Cook,

48 M.J. 434, 436 (C.A.A.F. 1998).

Appellant has not challenged the validity of the convening

authority’s use of the automatic process to add members in the

present case. Thus, the only question before us is whether,

under the record established at trial and during the DuBay

proceedings, prejudicial plain error occurred in the process of

excusing members and adding the two members at issue here, each

of whom had been specifically identified by the convening

authority in the convening order to be added upon the occurrence

of a triggering event. See id.

In this case, the record of trial and the record of the

DuBay proceedings reflect the following: (1) the convening

authority personally selected the primary and alternate members

listed on Court-Martial Convening Order Number 10, including the

members whose service on the panel is at issue in this appeal;

(2) the convening authority referred the charges in the present

10
United States v. Mack, No. 03-0029/AR

case to the court-martial convened under Court-Martial Convening

Order Number 10; (3) the convening order contained a procedure

automatically excusing certain members and adding other members

in the event of a request for a panel that included enlisted

members; (4) Appellant requested a panel that included enlisted

members; (5) the members at issue in the present appeal were

included on the convening order in the category of members to be

added to the court-martial panel in the event of a triggering

event that caused the number of enlisted members on the panel to

fall below quorum; (6) three primary members -- two officer and

one enlisted -- were excused prior to trial; and (7) trial

counsel stated at trial that the members had been detailed

properly.

In the present case, the record does not contain evidence

demonstrating error, much less prejudicial error, in the

mechanics of the triggering process. On the contrary, the

record is consistent with the occurrence of a triggering event.

Excusal of one officer and the one enlisted member prior to the

excusal of the other officer would have reduced the panel to ten

members, five of whom were officers and five of whom were

enlisted. At that point, the number of enlisted members would

have been less than one-third of the total panel plus two, which

is the first triggering event listed in the SJA’s memorandum to

11
United States v. Mack, No. 03-0029/AR

the convening authority regarding operation of the convening

order.

At trial, there was no requirement for the trial counsel to

address the circumstances of the triggering event. On appellate

review, including review during a DuBay proceeding, the

Government likewise was not obligated to produce evidence of the

actual operation of the triggering mechanism absent evidence in

the trial record or adduced after trial raising reasonable

questions regarding the triggering mechanism.

Even if the military judge at the DuBay hearing had

concluded that there had been an error in the operation of the

triggering process, that would not have ended the inquiry.

Where, as in this case, the record establishes that the members

of the panel were listed on the face of the pertinent convening

order to be added upon a triggering event and the panel met the

applicable one-third enlisted composition requirement, any error

in the operation of the triggering mechanism was administrative,

not jurisdictional, and Appellant was required to demonstrate

prejudice. See Cook, 48 M.J. at 486. There has been no showing

of prejudice in this case.

12
United States v. Mack, No. 03-0029/AR

II. MULTIPLE CONSPIRACY SPECIFICATIONS

A. BACKGROUND

Appellant and her co-conspirator sought to steal $3,000

from the American Red Cross Emergency Services. To that end,

they conspired to steal a check from the Red Cross and to

falsely make out that check for $3,000, payable to Appellant’s

co-conspirator.

In this context, the charges against Appellant included two

separate conspiracy specifications. The first specification

charged Appellant with conspiring to commit forgery by falsely

making out an American Red Cross Emergency Services check to her

co-conspirator for the amount of $3,000. The second

specification alleged that Appellant conspired to commit larceny

of $3,000 from the American Red Cross Emergency Services by

stealing the same Red Cross check. At trial, the prosecution

produced evidence of only one agreement – to steal money from

the American Red Cross Emergency Services.

B. DISCUSSION

In the present appeal, the Government acknowledges that

there was only one conspiracy. See Braverman v. United States,

317 U.S. 49, 53 (1942)(holding that it is the “agreement which

constitutes the conspiracy ... one agreement cannot be taken to

be several agreements and hence several conspiracies because it

13
United States v. Mack, No. 03-0029/AR

envisages the violation of several statutes rather than one”);

United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United

States v. Reliford, 27 M.J. 176 (C.M.A. 1988)(summary

disposition). Accordingly, it is appropriate to consolidate the

conspiracy allegations into a single specification.∗ Because the

conduct supporting a conviction on that specification remains

the same as that proved at trial, we affirm the findings as

consolidated.

With respect to the sentence, we conclude that Appellant

suffered no prejudice in the circumstances of this case from the

erroneous use of two conspiracy specifications rather than a

single specification. The conspiracy charge was not the major

component of the findings against Appellant. She also was

convicted of five specifications of forgery, one specification

of attempted larceny, and one specification of larceny. The use

∗
Specifications 1 and 2 of Charge I are consolidated as follows:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81

Specification: In that Specialist Annie R. Mack, U.S. Army, did, at or near
Fort Hood, Texas, on or about 14 July 1998 conspire with George L. Bailey to
commit offenses under the Uniform Code of Military Justice, to wit: forgery,
by falsely making, with intent to defraud, a certain check in the following
words and figures, to wit: Pay to the Order of George L. Bailey the sum of
$3000.00, dated 14 July 1998 and drawn on the account of the American Red
Cross Emergency Services at The First National Bank of Chicago, which would,
if genuine, apparently operate to the legal harm of another in that $3000.00
would be withdrawn from the American Red Cross account at The First National
Bank of Chicago; and larceny of U.S. currency of a value of $3000.00, the
property of the American Red Cross, and in order to effect the object of the
conspiracy the said Specialist Annie R. Mack did steal an American Red Cross
Emergency Services check # 00347112.

14
United States v. Mack, No. 03-0029/AR

of two conspiracy specifications rather than one did not require

any additional evidence because the conduct underlying the two

conspiracy specifications was the same as the conduct supporting

the single consolidated specification.

Consolidation of the conspiracy charge into a single

specification would not have had a major impact on the maximum

sentence available at trial in the context of the sentence

adjudged. The maximum confinement announced at trial was forty

years. The maximum confinement with a consolidated conspiracy

specification would have been thirty-five years and six months.

Appellant was sentenced to only two years confinement. In that

context, the error in convicting Appellant of two conspiracy

specifications was not prejudicial as to the sentence. See

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

III. DECISION

The decision of the Army Court of Criminal Appeals as to

Charge I and its specifications (as consolidated), Charge II and

its specification, Additional Charge III and its specification,

Additional Charge IV and its specification, and the sentence is

affirmed.

15