United States v. Begani

UNITED STATES Appellee v. Stephen A. BEGANI Chief Petty Officer (E-7) U.S. Navy (Retired) Appellant

No. 201800082

United States Court of Criminal Appeals, Navy-Marine Corps

January 24, 2020

Argued (Panel): 29 March 2019 ^[1]

Reargued (En Banc): 20 November 2019

Military Judge: Captain Stephen C. Reyes, JAGC, USN. Sentence adjudged 1 December 2017 by a general court-martial convened at Fleet Activities Yokosuka, Japan, consisting of a military judge sitting alone. Sentence approved by the convening authority confinement for 18 months and a bad-conduct discharge.

Appeal from the United States Navy-Marine Corps Trial Judiciary.

For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN (argued and on brief).

For Appellee: Lieutenant Timothy C. Ceder, JAGC, USN (argued) Captain Brian L. Farrell, USMC (on brief); Lieutenant Kimberly Rios, JAGC, USN (on brief).

Before THE COURT EN BANC

OPINION

STEPHENS, JUDGE.

Appellant was convicted, pursuant to his pleas, of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ).^[2] The convening authority approved the adjudged period of confinement and, pursuant to a pretrial agreement, commuted the adjudged dishonorable discharge to a bad-conduct discharge.

At the time he committed the offenses in Japan, Appellant was no longer serving in the Regular component of the United States Navy, but had transferred to inactive status in the Fleet Reserve. He asserts five assignments of error (AOEs), which we renumber as follows: (1) as a member of the Fleet Reserve, he is no longer a member of the Armed Forces and therefore cannot constitutionally be subjected to trial by court-martial under the UCMJ; (2) that Appellant's Fifth Amendment Due Process right to equal protection of the laws was violated because Article 2, UCMJ, subjects members of the Fleet Reserve and retirees from Regular components to court-martial jurisdiction, but not retirees of Reserve components; (3) he did not receive adequate notice under Article 137, UCMJ, or other authority, that he was subject to trial by court-martial for misconduct committed in a foreign country; (4) as a member of the Fleet Reserve, he cannot be punitively discharged from the service; and (5) as a member of the Fleet Reserve, he cannot be subjected to court-martial jurisdiction without first being recalled to active duty.^[3]

In an opinion published on 31 July 2019, a panel of this Court found merit in Appellant's second AOE, concluded that the court-martial lacked jurisdiction over Appellant due to an equal protection violation, and dismissed the approved findings and sentence. We subsequently granted the Government's request for en banc consideration and withdrew the earlier panel decision. We now find no prejudicial error and affirm.

I. Background

After 24 years of active duty service, and numerous voluntary reenlistments, Appellant elected to transfer to the Fleet Reserve.^[4] He was honorably discharged from active duty and started a new phase of his association with the "land and naval Forces"^[5] of our Nation. In short, for all intents and purposes, he retired. In addition to receiving "retainer pay," base access, and other privileges accorded to his status as a member of the Fleet Reserve, he remained subject to the UCMJ under Article 2(a)(6).

After Appellant retired, he remained near his final duty station, Marine Corps Air Station (MCAS) Iwakuni, Japan, and worked as a government contractor. Within a month, he exchanged sexually-charged messages over the internet with someone he believed to be a 15-year-old girl named "Mandy," but who was actually an undercover Naval Criminal Investigative Service (NCIS) special agent. When he arrived at a residence onboard MCAS Iwakuni, instead of meeting with "Mandy" for sexual activities, NCIS special agents apprehended him.

The Commander, U.S. Naval Forces Japan, sought approval from the Secretary of the Navy to prosecute Appellant at a court-martial, as opposed to seeking prosecution in U.S. District Court under the Military Extraterritorial Jurisdiction Act (MEJA).^[6] Because Appellant was still subject to the UCMJ, and therefore ineligible for prosecution under MEJA, ^[7] the Secretary authorized the Commander to prosecute him at court-martial.

After Appellant unconditionally waived his right to a preliminary hearing under Article 32, UCMJ, he entered into a pretrial agreement (PTA). In his PTA, he waived his right to trial by members and agreed to plead guilty and be sentenced by a military judge. He also waived all waivable motions except for one. He argued he could not lawfully receive a punitive discharge because he was a member of the Fleet Reserve. The trial court denied that motion.

II. Discussion

Congress has the sole authority under the Constitution to make regulations for the land and naval Forces. Implicit in this authority is the power to determine who is subject to court-martial jurisdiction, whether by virtue of membership in the land and naval Forces or some other circumstance that enhances the orderly operation of the military. Court-martial jurisdiction, based on the text of the Fifth Amendment, necessarily deprives an individual of the fundamental right to a grand jury. Court-martial jurisdiction also deprives an individual of the fundamental Sixth Amendment right to a civilian jury trial. Congress created three different groups of military retirees, but currently subjects only two of them to continuous court-martial jurisdiction. Congress considers these groups different for purposes of the overall operation of the land and naval Forces and we owe great deference to its statutory scheme in this area in recognizing Appellant is subject to the UCMJ as a member of the Fleet Reserve.

In considering Appellant's equal protection argument, we find that members of the Fleet Reserve are not similarly situated with retirees from the Reserve Components. Even if they were, Congress has the constitutional authority to subject one, but not the other, to court-martial jurisdiction.

A. Court-Martial Jurisdiction over Members of the Fleet Reserve

1. Congressional authority over the land and naval Forces

It is unquestioned that Congress has the authority to "make Rules for the Government and Regulation of the land and naval Forces."^[8] According to Justice Story, this power is "a natural incident"^[9] to Congress' constitutional authority to "declare war, "^[10] to "raise and support Armies, "^[11] to "provide and maintain a Navy, "^[12] and to provide for "calling forth"^[13] and "organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States."^[14] The land and naval Forces clause was unremarkable and taken almost directly from the Articles of Confederation.^[15]

It is also unquestioned that Soldiers, Sailors, and other Service Members do not possess the same constitutional rights at court-martial that they would in civilian court. This reflects an understanding of the necessity for military discipline-which Washington once called "the soul of an Army"^[16]- to be elevated over certain fundamental constitutional rights. And this is explicitly recognized in the Fifth Amendment grand jury right for those answering for "a capital, or otherwise infamous crime . . . except in cases arising in the land or naval forces . . . [.]"^[17] The very nature of military service means an abrogation of certain rights accorded to other persons.

Commensurate with this service concept, the preamble to the Manual for Courts-Martial (MCM) has long stated that "[t]he purpose of military law is to promote justice, to assist in maintaining good order and discipline, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."^[18] Over time, the modern court-martial system statutorily enacted in 1950 has expanded. For a time, it was focused on expeditiously adjudicating only service- related crimes, leaving to civilian courts the task of adjudicating non-service-related crimes.^[19] At present, both service-related crimes and non-service-related crimes may be prosecuted at courts-martial.^[20] Today, the military justice system features many of the same protections found in civilian justice systems.^[21]

The question before us now is, which members of the "land and naval Forces" can be subject to the UCMJ?

2. The statutory scheme of Article 2, UCMJ

At first blush, Article 2 has an odd assortment of characters who are subject to the UCMJ. Generally speaking, Article 2 includes anyone actively serving in uniform, Service Academy students, new enlistees, paid volunteers performing military duties, military prisoners, enemy prisoners of war, and certain persons assigned to serve with the military, or accompanying the military in combat or outside the United States or its territories. The list includes some, but not all, military retirees. It also includes retired Reservists who are receiving hospitalization from an armed force. The common thread in Article 2 is to include those classes of persons Congress has determined it needs to maintain control over for the orderly conduct of the land and naval Forces.

Article 2 has an on-again-off-again approach to Reservists.^[22] While they are traveling to and from inactive-duty training, during those training periods, and in any intervals for consecutive days of training periods, they are subject to the UCMJ. When the travel from the inactive-duty training ends, so does the Article 2 jurisdiction. For typical Reservist careers, this is a regular feature of their lives...