Army Court of Criminal Appeals

United States v. Burch

Burch is an important case on how Lautenberg applies to the various 128 offenses--wish it were published. In this case some misunderstandings during PTA negotiations and on the record led to a guilty plea being set aside and a rehearing authorized.

The Appellant pled guilty to assault and battery under Article 128, for which the MJ did not impose any punishment.

Initially, he was charged with four specifications under Article 120, one under Article 128b, and one under Article 90. The government subsequently dismissed the Article 128b and Article 90 specifications.

PTA negotiations began. Initially, the government offered to dismiss the 120s in exchange for a plea to the 128b. The Appellant, an avid hunter, expressed that he did not want to plead to a DV charge because of Lautenberg. There was back and forth on this where there were discussions about a plea to a 128. This is where it gets squirrely.

As a counteroffer, defense counsel proposed a Resignation for the Good of the Service (RFGOS). After discussing the matter with the alleged victim, the SVP told defense counsel that the victim and the government would support a RFGOS.

Although he initially approved the RFGOS counteroffer, appellant changed his mind because he was also attempting to obtain a medical separation for injuries suffered in a recent motorcycle accident. Appellant asked his counsel if there was a way to continue with the medical separation process by pleading guilty to a non-domestic violence/non-Lautenberg qualifying offense.

Some of what happened might be attributable to a lack of communication by the Government.

Based on this conversation, defense counsel believed that the SVP understood that the reason behind the offer to plead guilty to Article 128, instead of an Article 128b offense, was to avoid appellant being subject to the Lautenberg Amendment's collateral firearm restrictions.

During the R.C.M. 810(0 hearing, the SVP asserted that "knowing that [appellant] had pled guilty to assault consummated by a battery on his spouse -- [] — I thought that he absolutely would be subject to Lautenberg, in light of the offense to which he was pleading guilty." The SVP also testified, however, that he did not share with defense counsel his belief that Lautenberg would "absolutely" apply.

The misunderstanding continues.

​On 6 November 2023, the day of trial, the military judge held an off-the-
record R.C.M. 802 session with counsel (but not appellant) in chambers. In that
session, the military judge inquired into which offense appellant was pleading guilty
to: "Article 128 assault consummated by a battery; Article 128 Battery upon arecord R.C.M. 802 session with counsel (but not appellant) in chambers. In that
session, the military judge inquired into which offense appellant was pleading guilty
to: "Article 128 assault consummated by a battery; Article 128 Battery upon a
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BURCH -- ARMY 20230576
spouse, intimate partner or immediate family member for offenses occurring on or
after 1 January 2019 and before 26 January 2022; or Article 128b -- 'Domestic
Violence'." The government confirmed, and the defense concurred, that it was not a
"domestic violence" charge, but only an assault consummated by a battery.
. . .
Summarizing the R.C.M. 802 session in front of appellant on the record, the
military judge described "a meeting of the minds amongst the parties as it pertains to
the Article 128 offense." After the R.C.M. 802 session, defense counsel told
appellant, "this is going to proceed normally," and that based on the judge's
comments "we're, so far, like where -- where we need to be."
Defense counsel also testified that in a prior case before the same military
judge where the Lautenberg Amendment applied, the judge discussed those collateral
consequences as part of her colloquy with the accused. Defense counsel also
explained to appellant that if the judge asked him any questions about the
Lautenberg Amendment in this case, "I'll basically let the judge know that
Lautenberg here, based on the agreement, based on the negotiations and the common
understanding of the parties, was not to be triggered." The fact that the military
judge did not mention the Lautenberg Amendment during the plea colloquy further
confirmed the belief of defense counsel and appellant that all parties agreed that the
Lautenberg Amendment was not applicable in this case.

The confusion continues into the post-trial documentation and whether the MJ had the authority to hold an Article 39(a) hearing after signing the EoJ--she said she didn't.

ACCA makes several important points.

1. Lautenberg applies even to a "plain" Article 128 if there is sufficient information in it to qualify under 

18 U.S.C. § 922(g)(9) criminalizes the possession of firearms by those previously convicted of a misdemeanor crime of domestic violence, which is in turn defined as an offense that: (1) is a misdemeanor under federal, State, Tribal or local law; (2) has an element, the use or attempted use of force; (3) is committed by a spouse or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, or by a person who has a current or recent former dating relationship with the victim. 18 U.S.C. § 821(a)(33)(A).

And

(1) Article 128, which has a maximum punishment of six months, qualifies as a misdemeanor offense under federal law; (2) Article 128 requires the use of force, and appellant admitted that he used unlawful force when he grabbed the victim's wrist; and (3) appellant admitted both in the stipulation of fact and plea colloquy that the victim was his spouse. Finally, the fact that the wording of the specification did not specifically allege that the victim was appellant's spouse does not change the analysis. See United States v. Hayes, 555 U.S. 415, 426 (2009) (holding that although the government must prove the existence of the qualifying relationship under section 922(g)(9), such a relationship is not a required statutory element).

2. The Appellant's reliance on the advice of defense counsel led to 

a misunderstanding of a collateral consequence[.] A guilty plea may be withdrawn only when that consequence is both "major" and such misunderstanding: "(a) results foreseeably and almost inexorably from the language of the pretrial agreement; (b) is induced by the trial judge's comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding." Whether a collateral consequence is major or material depends upon the circumstances of the case.

So who's fault was it?

Having considered the entire record, to include the R.C.M. 810(0 findings of fact, we answer the question posed by the R.C.M. 810(f) judge in the affirmative. In short, the SVP was not only aware of defense counsel's misunderstanding of the Lautenberg Amendment, but unfairly took advantage of that misunderstanding to secure a guilty plea. We can fathom no reason why, after defense counsel repeatedly told the government that the whole point of the negotiations was to avoid such a consequence, a prosecutor negotiating in good faith would fail to disclose that he "absolutely" knew the Lautenberg Amendment applied. As such, appellant's misunderstanding of the applicability of the Lautenberg Amendment was: (1) in large measure induced by the conduct of the SVP; and (2) made clear to the SVP, who nonetheless failed to correct that misunderstanding. Although the C.A.A.F. in Smith referred to the trial judge's comments or failure to correct an appellant's misunderstanding, we find the same logic and rationale must apply equally to government counsel. See Albert, 30 M.J. at 332 (holding appellant not entitled to relief where no misrepresentation "made by the convening authority or trial counsel" (emphasis added)).

In addition to the SVP's actions, the trial judge's comments at trial inadvertently contributed to the misunderstanding of appellant and the defense team.

3. The authority to hold a post-trial hearing.

We appreciate, and whole-heartedly agree with, the government's concession
that the military judge erred when she did not act on appellant's post-trial motion to
address the misunderstanding about the applicability of the Lautenberg Amendment.
It is worth noting at the outset that trial counsel failed to comply with their
obligations to forward a copy of the STR to defense as required by R.C.M. 1101(d),
and the military judge failed to comply with her obligation to review the STR with
both counsel for accuracy before signing it as required by AR 27-10, paragraph 5-
42(a). Simply put, had either of these actions occurred in early November when she ​signed the STR, there would have been more than enough time for the military judge
to resolve the disputed issue before she signed the Eal.
Moreover, once defense counsel put the military judge on notice in early
December that there was a dispute over a "material term of the agreement," the
military judge erred by not discharging her obligation under the applicable rules and
regulations to resolve that issue before she signed the EOJ.

While finding error by the MJ, the issue is mooted by vacating the findings and sentence.

---

United States v. Bailey
__ M.J. ___ (Army Ct. Crim. App. 2024)

Bailey is useful in a situation where the parties ask for special findings uner R.C.M. 918(b).

Cheers, Phil Cave.