United States v. Kahmann

IN THE CASE OF

UNITED STATES, Appellee

v.

Matthew S. KAHMANN, Private
U.S. Marine Corps, Appellant

No. 03-0522
Crim. App. No. 200200355

United States Court of Appeals for the Armed Forces

Argued January 14, 2004

Decided March 23, 2004

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

Counsel

For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR
(argued); Commander George F. Reilly, JAGC, USN.

For Appellee: Major Raymond E. Beal II, USMC (argued);
Commander Robert P. Taishoff, JAGC, USN (on brief);
Lieutenant Lars C. Johnson, JAGC, USNR.

Military Judge: F. A. Delzompo

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Judge EFFRON delivered the opinion of the Court.
United States v. Kahmann, No. 03-0522/MC

Judge EFFRON delivered the opinion of the Court.

At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of unauthorized absence, in violation of Article 86, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 886

(2000). He was sentenced to a bad-conduct discharge,

confinement for 90 days, and forfeiture of $695 of pay per month

for three months. The convening authority approved the sentence

as adjudged, and suspended all confinement in excess of 30 days

pursuant to the pre-trial agreement. The Court of Criminal

Appeals initially affirmed the findings while modifying the

sentence in an unpublished opinion. The court subsequently

vacated that decision and issued a new opinion that affirmed the

findings and affirmed the sentence as approved by the convening

authority. United States v. Kahmann, 58 M.J. 667 (N-M. Ct.

Crim. App. 2003)(en banc).

On Appellant’s petition, we granted review of the following

issue:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY ADMITTING EVIDENCE OF A PRIOR
SUMMARY COURT-MARTIAL CONVICTION DURING
PRESENTENCING WHEN THERE WAS NO SHOWING THAT
ACCUSED HAD AN OPPORTUNITY TO SPEAK WITH
COUNSEL BEFORE THE SUMMARY COURT-MARTIAL AND
NO EVIDENCE SHOWING COMPLIANCE WITH THE
REVIEW REQUIREMENTS UNDER ARTICLE 64, UCMJ.

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For the reasons set forth below, we hold that admission of the

prior summary court-martial conviction into evidence during the

sentencing proceeding did not constitute plain error.

I. BACKGROUND

A. RECORDS OF NONJUDICIAL PUNISHMENT
AND CONVICTIONS BY SUMMARY COURTS-MARTIAL

1. The statutory right to object to nonjudicial punishment
proceedings and summary courts-martial

General and special courts-martial serve as the primary

venues for the trial of criminal offenses in the military

justice system. See Articles 18-19, UCMJ, 10 U.S.C. §§ 818-819

(2000). Military judges preside over these courts and qualified

counsel represent the parties, subject to narrowly drawn

exceptions for certain special courts-martial. See Articles 18-

19, 26, 27 UCMJ, 10 U.S.C. §§ 818-819, 826-827 (2000). Rule for

Courts-Martial 201(f)(1)-(2) [hereinafter R.C.M.]. The rules of

evidence and procedure in general and special courts-martial are

in many respects quite similar to those applicable to criminal

trials in federal civilian courts. See, e.g., Article 36, UCMJ,

10 U.S.C. § 836 (2000); David A. Schlueter, Military Criminal

Justice § 1-7, at 37; § 15-18, at 694 (5th ed. 1999).

The UCMJ also authorizes two expedited procedures for the

disposition of minor offenses. First, commanding officers may

use nonjudicial procedures to impose disciplinary punishments

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upon their subordinates for minor infractions. Article 15,

UCMJ, 10 U.S.C. § 815 (2000). Under Article 15, service members

may receive a variety of minor punishments, such as forfeiture

of pay, reduction in rank, imposition of extra duties,

restriction to specified limits, and correctional custody for

not more than 30 days. Article 15 procedures are relatively

informal, and the service member is not entitled to

representation by qualified counsel. See Manual for Courts-

Martial, United States (2002 ed.), Part V. A service member has

the right to demand trial by court-martial in lieu of

nonjudicial punishment proceedings, unless the member is

attached to or embarked in a vessel. Article 15(a); see United

States v. Edwards, 46 M.J. 41 (C.A.A.F. 1997).

Second, certain commanders may refer charges against

enlisted personnel to a summary court-martial for expedited

consideration of minor offenses. Article 20, UCMJ, 10 U.S.C.

820 (2000); R.C.M. 1301(b). A summary court-martial consists of

a single officer, who conducts a simplified, non-adversarial

examination of the charges. The accused is not entitled to be

represented by counsel. See R.C.M. 1301(e); Middendorf v.

Henry, 425 U.S. 25 (1976). The limitations on the sentencing

power of a summary court-martial include a prohibition against

adjudging a punitive discharge or confinement in excess of 30

days. Article 20; R.C.M. 1301(d). Prior to arraignment, an

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accused, including a person assigned to or embarked in a vessel,

may object to trial by summary court-martial. Article 20;

R.C.M. 1303. Upon such objection, an appropriate convening

authority may refer the case to a special or general court-

martial.

Subject to the limited exceptions outlined above, the

effect of these provisions is that any service member facing a

nonjudicial punishment proceeding or summary court-martial is

entitled to object and insist that any further proceedings take

place under formal judicial procedures. Through such

objections, a service member may ensure that any further

proceedings will take place before a special or general court-

martial where a military judge will preside over any further

proceedings, the Rules for Courts-Martial and Military Rules of

Evidence will apply, and the service member will be represented

by qualified legal counsel.

The point at which a service member must decide whether to

object to an informal proceeding is an important stage in the

military justice process. In recognition of the key role that

counsel can play in advising a service member at that point, our

Court has limited the admissibility of such records when the

accused has not had the opportunity to consult with counsel.

See, e.g., United States v. Edwards, 46 M.J. 41, 43 (C.A.A.F.

1997)(citing United States v. Booker, 5 M.J. 238 (C.M.A. 1977));

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United States v. Kelly, 45 M.J. 259, 263-65 (C.A.A.F. 1996)

(plurality opinion citing United States v. Mack, 9 M.J. 300

(C.M.A. 1980), and Cox, C.J., concurring in part and in the

result)).

2. Sentencing proceedings: nonjudicial punishment records and
convictions by a summary courts-martial

In a sentencing proceeding, the prosecution may introduce

certain personnel records of the accused, including records of

punishment under Article 15. R.C.M. 1001(b)(2). The defense

may object to the admission of a record on the grounds that it

is inaccurate, incomplete, not made or maintained in accord with

departmental regulations, or that the record otherwise contains

inadmissible evidence. Id. The accused also may object on the

grounds that he or she was not provided with the opportunity to

confer with counsel before deciding whether to demand trial by

court-martial. See Edwards, 46 M.J. at 43.

During sentencing, the prosecution also may introduce prior

convictions of the accused, including convictions by summary

court-martial. R.C.M. 1001(b)(3). Among the objections that

may be made to the admissibility of a summary court-martial

conviction, the accused may cite the absence of proof of review

under Article 64, 10 U.S.C. § 864 (2000). R.C.M. 1001(b)(3)(B).

In addition, the accused may object to the admissibility of a

summary court-martial conviction on the grounds that the accused

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was not provided with the opportunity to consult with counsel

prior to deciding whether to object to the proceeding. See

Kelly, 45 M.J. at 264.

B. CONSIDERATION OF A PRIOR SUMMARY COURT-MARTIAL CONVICTION
DURING APPELLANT’S SENTENCING PROCEEDING

At a special court-martial where he was represented by

counsel, Appellant was convicted of unauthorized absence,

pursuant to his pleas. During the sentencing proceeding, trial

counsel introduced a document from Appellant’s personnel records

entitled “Record of Conviction by Court-Martial (1070).” The

document contained the following entries: (1) the name of the

organization conducting the summary court-martial; (2) the date

of trial and a block with a check mark noting that the trial was

conducted by summary court-martial; (3) a summary of the charges

and specifications, including unauthorized absence, willful

disobedience of an order, assault, and communicating a threat;

(4) a statement that findings of guilty were returned as to

three of the four charged offenses; (5) a block with a check

mark noting that Appellant waived representation by counsel; (6)

a summary of the sentence; (7) the date of the convening

authority’s action; (8) a signature block containing a signature

of a noncommissioned officer with the title of administrative

chief; and (9) Appellant’s name. The check block designed to

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reflect notification of the disbursing officer was not

completed.

Defense counsel did not object to the admissibility of the

document. Counsel objected to consideration by the military

judge of that portion of the document describing the offenses

that did not involve absence on the grounds that such

information was irrelevant, and that it was more prejudicial

than probative. Counsel expressly stated that the defense

objection did not preclude consideration of the summary court-

martial conviction for unauthorized absence. The military judge

overruled the defense objection. The ruling by the military

judge on Appellant’s specific objection is not at issue in the

present appeal.

The Court of Criminal Appeals affirmed, relying on

Appellant’s failure to object to the admissibility of the

document. Kahmann, 58 M.J. at 668. The court expressly stated

that “we are not attempting to abrogate, by this decision, the

mandate of Booker/Mack that a servicemember must be afforded an

opportunity to consult with counsel prior to accepting

nonjudicial punishment (NJP) or a summary court-martial in order

for that disciplinary action to be admissible in aggravation at

a summary court-martial.” Id. Likewise, in this appeal, the

Government does not seek to deny servicemembers the right to

consult with counsel in such circumstances.

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II. DISCUSSION

The granted issue raises two questions concerning the

admissibility of the record of Appellant’s summary court-martial

conviction despite the absence of an objection at trial. First,

whether the record is inadmissible because it does not state

expressly that Appellant was provided with the opportunity to

consult with counsel prior to electing to proceed with a summary

court-martial. Second, whether the record is inadmissible

because it does not state expressly that the required legal

review was completed under Article 64.

Under Military Rules of Evidence 103 [hereinafter M.R.E.],

a ruling admitting evidence will not be overturned on appeal

unless there was an appropriate objection at trial, subject to

consideration of plain error. In a case decided prior to the

adoption of M.R.E. 103 that involved the admissibility of a

prior summary court-martial conviction, our Court indicated that

the military judge had an affirmative duty to ensure that the

accused had been afforded an opportunity to consult with counsel

and had affirmatively waived the right to object to trial by

summary court-martial. United States v. Booker, 5 M.J. 238,

243-44 (C.M.A. 1977).

In subsequent cases, we have suggested that M.R.E. 103

governs the admissibility of records reflecting summary court-

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martial convictions and nonjudicial punishment, see, e.g.,

United States v. Dyke, 16 M.J. 426, 427 (C.M.A. 1983), although

we have not expressly based a decision on that position. We do

so today. A document that summarizes a summary court-martial

conviction or nonjudicial punishment does not differ in

significant respects from other records that are subject to

M.R.E. 103. Recognition of the importance of the opportunity to

consult with counsel prior to an election concerning a

nonjudicial punishment proceeding or a summary court-martial,

see Kelly, 45 M.J. at 264, does not require differential

treatment with respect to plain error analysis. Accordingly, we

hold that admissibility of the record from such a proceeding is

governed by the objection and plain error provisions of M.R.E.

103.

We analyze a claim of plain error under the three-part

standard of United States v. Powell, 49 M.J. 460, 464-65

(C.A.A.F. 1998); that is, (1) whether there was an error; (2) if

so, whether the error was plain or obvious; and (3) if the error

was plain or obvious error, whether it was prejudicial. See

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

Appellant contends that the military judge erred in

admitting the record of summary court-martial conviction because

the document did not state on its face that Appellant had been

afforded an opportunity to consult with counsel prior to

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electing to proceed with the summary court-martial. The

placement of such a statement on the document may be desirable

as a matter of policy, particularly in view of the fact that an

objection to the document requires the Government to prove that

the accused was afforded the opportunity to consult with

counsel, and the Government must do so without compelling the

accused to provide such evidence. See United States v. Cowles,

16 M.J. 467 (C.M.A. 1983). The admissibility of such a record,

however, does not depend upon the placement of such a statement

on the face of the document, and the prosecution may prove that

Appellant was afforded the opportunity to consult with counsel

through other evidence. See Mack, 9 M.J. at 322-23. Absent

objection by the defense, the prosecution is under no obligation

to introduce such evidence.

Appellant cites our opinion in Dyke, 16 M.J. at 427, for

the proposition that plain error may be predicated upon

irregularities in the document. In support of this argument,

Appellant relies on section 4008 of the Marine Corps Individual

Records Administration Manual (IRAM) as the basis for suggesting

various irregularities in the document at issue.

Absent timely objection, irregularities do not provide a

basis for relief without a showing that any errors were plain or

obvious, or that they were prejudicial. As we noted in Dyke, a

document that has “illegible signatures or where some blanks

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remain unfilled” would usually not provide the basis for relief

in the absence of a trial objection. 16 M.J. at 427. In Dyke,

the errors were apparent on the face of the document. The

document contained four places where the signature of Appellant

or his commander should have appeared, and each was blank. We

concluded that the document “was so incomplete on its face that

the judge should have excluded it on his own motion.” Id.

Appellant has identified three regulatory errors in the

document at issue in the present case: (1) failure to include

language regarding consultation with counsel prior to the

summary court-martial; (2) failure to check the block indicating

that the disbursing officer has been informed of the sentence;

and (3) failure to include either the signature of the

Appellant’s commanding officer or an indication that the person

signing the form has done so by direction of the commanding

officer. Each of these matters is distinguishable from the

significant facial defects of the document at issue in Dyke.

As noted by Appellant, section 4008 of the IRAM summarizes

our case law regarding admissibility of the record of a summary

court-martial conviction, and provides a model paragraph that

“may” be inserted on the reverse side of the document to reflect

consultation with counsel. This provision, however, does not

establish a mandatory requirement. Use of the term “may” in

this context reflects non-binding guidance. The absence of the

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model paragraph on the face of the document introduced at

Appellant’s trial does not establish a plain or obvious error,

particularly in light of our case law, which does not require

such a notation on the document. See Mack, 9 M.J. at 322-23.

With respect to the fact that the document was signed by a

noncommissioned officer rather than an officer acting “by

direction” of the commander as provided in the IRAM, we note

that no such requirement appears on the face of the document

introduced at Appellant’s trial. The document at issue contains

a signature by a noncommissioned officer with the title of

administrative chief. It is not unusual in the armed forces for

noncommissioned officers in administrative positions to sign

official documents that summarize actions taken by officers. To

the extent that there was a failure to follow an administrative

requirement in the personnel manual, the defect was not manifest

on the face of the document. While there may be some records in

which the absence of an officer’s signature might constitute a

plain or obvious error, this is not such a case. There is one

obvious error on the face of the document -- the absence of a

check mark in the block indicating notification to the

disbursing officer. In the present case, however, Appellant

does not claim any prejudice that might have resulted from the

absence of the check mark, such as an error in computing or

applying the adjudged forfeiture of pay. Under these

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circumstances, any error by the military judge in admitting the

document without inquiring into the missing check mark did not

constitute prejudicial plain error.

Similar considerations apply to Appellant’s contention that

the military judge erred by admitting the record of a summary

court-martial conviction when the document did not contain a

notation that review had been completed under Article 64. See

R.C.M. 1001(b)(3)(B). Appellant has not identified any

statutory, regulatory, or judicial requirement to place such a

notation on a document summarizing a conviction by summary

court-martial. If the defense objects to the admissibility of a

document summarizing a summary court-martial conviction on the

grounds that there is no evidence of review under Article 64,

the burden is on the prosecution to demonstrate that such review

has been completed. The opportunity to object is sufficient to

protect Appellant’s rights under R.C.M. 1001(b)(3)(B), and the

military judge is not required to inquire on his or her own

motion whether such review has been completed.

III. CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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CRAWFORD, Chief Judge (concurring in the result):

While I agree with the majority that there was a waiver in

this case, I write separately because I believe this Court has a

judicial obligation to follow Supreme Court precedent regarding

the right to counsel, absent a provision in the Manual for

Courts-Martial, United States (2002 ed.) or military necessity

for doing otherwise. The Court is not an ombudsman which can

decide the result it wants, and then pick and choose from the

Superior Court’s precedents to suit that result. Nor may it act

as a policy maker or legislator. By arbitrarily deciding when

and whether to follow the constitutional precedents of the

Supreme Court, this Court not only undermines the legitimacy of

its adjudication, but also undermines public confidence in the

stability and predictability of military justice.

When the Supreme Court interprets the Bill of Rights, this

Court is bound by those rulings and their rationales unless they

can be distinguished. By the same token, when the Supreme Court

specifically holds that the right to counsel does not apply,

this Court is not at liberty to reject that decision. As to the

right to counsel, this Court applied the rationale of

Argersinger v. Hamlin, 407 U.S. 25 (1972), in holding that,

absent representation by counsel, or waiver of the right to

counsel, a summary-courts martial would not be admissible during

the sentencing procedures or for any other purpose. United
United States v. Kahmann, No. 03-0522/MC

States v. Alderman, 22 C.M.A. 298, 46 C.M.R. 298 (1973).

However, when the Supreme Court was specifically faced with that

issue, it held that the right to counsel did not apply at

summary courts-martial. Middendorf v. Henry, 425 U.S. 25

(1976). This Court is not at liberty to disregard that holding.

It is important to describe in detail this Court’s history

of selectively applying Supreme Court precedent as to the right

to counsel. First, in Alderman, this Court adopted the Supreme

Court rationale in Argersinger, 22 C.M.A. at 299-300, 46 C.M.R.

at 299-300. Although Argersinger was a civilian habeas action

and did not address summary courts-martial, this Court, in

Alderman, extrapolated from Argersinger a requirement for a

waiver of counsel or representation by counsel at summary

courts-martial for its results to be admissible at a subsequent

court-martial. Four years later, the Supreme Court in

Middendorf held that Argersinger did not apply to summary

courts-martial. Nevertheless, the very next year this Court

refused to follow the Supreme Court and rejected the Middendorf

holding and rationale in United States v. Booker, 5 M.J. 238

(C.M.A. 1977)(Booker I). In so doing, this Court in Booker I

implicitly created a right to counsel at a summary courts-

martial by holding

that absent waiver of counsel or representation by
counsel:

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(1) the escalator clause would not apply to
summary courts-martial;
(2) a summary courts-martial conviction was not
admissible for sentencing;
(3) Article 15s were not admissible for
sentencing; and
(4) Article 15s and summary courts-martial were
limited to military-type offenses.

United States v. Kelly, 45 M.J. 259, 266 (C.A.A.F. 1996)

(Crawford, J., dissenting).

In United States v. Booker, 5 M.J. 246 (C.M.A. 1978)(Booker

II), the Court reconsidered Booker I and held that Article 15s

and summary courts-martial were not limited to military-type

offenses. In United States v. Mack, 9 M.J. 300, 311 (C.M.A.

1980), the Court revisited the Booker I rationale and, in a 1-1-

1 opinion, sought to justify its rejection of Middendorf by

applying the escalator clause based on Baldasar v. Illinois, 446

U.S. 222 (1980). When the Supreme Court later removed the

Baldasar underpinnings in Nichols v. United States, 511 U.S. 738

(1994), this Court was once again faced with the opportunity to

apply current Supreme Court precedent with respect to the right

to counsel. Yet, it refused to do so in Kelly, 45 M.J. at 264,

and continued this Court’s selective application of

constitutional precedents of the Supreme Court.

Now, once again this Court has the opportunity to correct

its prior misapplication of Supreme Court decisions. Sadly,

however, not only does the majority continue this Court’s

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selective application of constitutional precedents established

by the Supreme Court, but now the majority also seeks to justify

its position by creating a new “important stage” analysis. It

is unclear what this “important stage” analysis means to

practitioners. In the future it might be compared with the

“critical stage” analysis which has been employed by the Supreme

Court in numerous cases. Neither the “critical stage” analysis

nor its possible new military analog was mentioned or cited in

the Middendorf case. At the time of adopting the Uniform Code

of Military Justice, Congress knew the import of various

decisions and the rights available to the accused at a summary

court-martial, and the duties and responsibilities of the

summary court-martial officer. And at the time of Middendorf,

the Supreme Court knew the consequences that could result from a

summary court-martial and the potential for greater punishment

if the accused opted to object to the summary court-martial.

Yet, the Supreme Court still held that the right to counsel does

not apply at the summary court-martial.

The accused’s option to obtain greater rights at a

proceeding is not unique to the military, but is also present in

both the state and federal systems. For example, the defendant

who appears before a United States federal magistrate judge in a

misdemeanor case has the right to be tried before a United

States district court judge, including a jury panel. But there

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is no requirement that because this option is available, there

must be an advisement of the right to consult with counsel

before opting for a trial before a district court. In the

magistrate court versus district court arena, the defendant may

opt for a district court judge or a jury subjecting him or her

to a potential greater punishment. Even so, it was not the

potential greater punishment, but rather the punishment that may

be imposed at the magistrate judge court level or misdemeanor

court level on which the Supreme Court relied in determining

when an individual is entitled to counsel.

In addition to the legal reasons already mentioned, there

are practical reasons for why we should reexamine Booker I and

Mack. The majority undermines truth in sentencing by denying

the sentencing authority a true picture of the Appellant’s

record. The military employs very comprehensive sentencing

procedures which allow the defense to introduce extensive

evidence in extenuation and mitigation, as well as grant the

accused expansive allocution rights. The Government should

likewise be able to present a full picture and not be undercut

by this Court’s refusal to apply Supreme Court decisions.

Furthermore, our forces are deployed worldwide fighting the

war on terrorism, and as a result, judge advocates are fully

engaged not only in the military justice arena, but also in

operational law, legal assistance, and numerous other complex

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legal fields, at camps, bases, and fleets serving by their side.

The number of lawyers available is limited. Many of these are

in resident training, or serving in non-legal billets, and thus

unavailable for varying periods of time to discharge legal

duties. 54 M.J. CXXXII, at CXLV. By continuing implicitly to

impose on the services by judicial decree a right to counsel

prior to accepting Article 15s and summary courts-martial, this

Court usurps the legislative and executive powers and does what

both Congress and the President have elected not to do: further

burden commanders and senior legal officers in their resolution

of operational matters. As the Supreme Court stated in Orloff

v. Willoughby, 345 U.S. 83, 93-94 (1953):

[J]udges are not given the task of running the
Army.... Orderly government requires that the
judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be
scrupulous not to interfere in judicial matters.

For these reasons, I must respectfully decline to join the

majority opinion.

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