United States V. Henderson: special court-martial convening authority cannot refer a capital charge
In United States v. Henderson, (1) the Court of Appeals for the Armed Forces held that a special court-martial lacked jurisdiction over a capital charge of willfully hazarding a vessel and the lesser-included charge of negligently hazarding a vessel. Henderson, who was Damage Controlman Fireman Apprentice onboard the USS TARAWA, built an improvised explosive device out of urine sample tubes, crushed flare powder, electrical wires, oil and washers. He intended to detonate the device onboard ship in order to commit suicide. After Henderson built the device, he placed it in a box and stored in the fan room onboard ship. The device was found and removed before he could initiate his suicide plan.
The charges against Henderson, including the charge of willfully hazarding a vessel in violation of Article 110, UCMJ, were referred to a special court-martial by the commanding officer of the USS TARAWA, an officer who exercised only special court-martial jurisdiction. Henderson entered into It plea agreement in which he agreed to plead guilty to, inter alia, the lesserincluded offense of negligently hazarding a vessel. It is important to note that the charge of willfully hazarding a vessel, however, was not dropped from the charge sheet and the lesser-included offense was not referred separately. Henderson was convicted of those charges to which he pleaded guilty and was acquitted of the charges to which he had pleaded not guilty, including the offense of willfully hazarding a vessel.
The jurisdiction of a special court-martial over a non-mandatory capital offense was a legal question in which the court reviewed de novo.
Willfully hazarding a vessel is a non-mandatory capital offense, punishable by “[d]eath or such other punishment as a court-martial may direct.” (2) Negligently hazarding a vessel is a lesser-included, noncapital offense, punishable by “[d]ishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.” (3)
Article 19, UCMJ, “jurisdiction of special courts-martial,” provides in pertinent part: “[S]pecial courts-martial have jurisdiction to try persons subject to this chapter for any noncapital offense made punishable by this chapter, and, under such regulations as the President may prescribe, for capital offenses.” Rule for Courts-Martial [hereinafter R.C.M.] 201(f)(2)(C), a regulation prescribed by the President, withholds jurisdiction over mandatory capital cases from special courts-martial, but does provide for jurisdiction over non-mandatory capital offenses under two circumstances: (1) when permitted by an “officer exercising general court-martial jurisdiction over the command which includes the accused”; and (2) when authorized by regulation by the Secretary concerned. The government presented no evidence that either of these exceptions applied in this case.
III. WAS THE FACT THAT THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY HAD NO AUTHORITY TO REFER A NON-MANDATORY CAPITAL CHARGE TO A SPECIAL COURT-MARTIAL A NON JURISDICTIONAL PROCEDURAL DEFECT?
The government first asked the court to find that the error was a nonjurisdictional procedural defect that was forfeited because it was not raised at trial, overruling United States v. Bancroft. (4) Bancroft was a Korean War case where the accused had been charged with violation of Article 113, UCMJ, for sleeping at his post. A conviction for violation of Article 113 during time of war is punishable “by death or such other punishment as a court-martial may direct.” The charges were referred to a special court-martial, which found Bancroft guilty. The Court of Appeals of the Armed Forces, noted that neither the officer exercising general court-martial jurisdiction nor the Secretary of the Navy had authorized the referral and held that the special court-martial did not have jurisdiction to try the non-mandatory capital offense of sleeping at a post during wartime in violation of Article 113. The special court-martial’s findings and sentence on that charge were therefore void. (5)
The facts in Henderson were strikingly similar to Bancroft. As in Bancroft, the officer making the referral exercised only special court-martial jurisdiction and referred a capital charge to a special court-martial without the authorization to do so. The court took this occasion to reaffirm their holding in Bancroft, and held that the court-martial in the present case lacked jurisdiction over the capital charge of willfully hazarding a vessel.
IV. ALTERNATIVELY, IF THE SPECIAL COURT-MARTIAL HAD NO JURISDICTION OVER THE CAPITAL CHARGE, COULD A PRETRIAL AGREEMENT BE CONSTRUED AS A NEW REFERRAL OF THE NON-CAPITAL LESSER-INCLUDED CHARGE?
The government next argued that, if the court found that there was no jurisdiction over the charge of willfully hazarding a vessel, when the special court-martial convening authority entered into a pretrial agreement with Henderson, in which Henderson agreed to plead guilty to the lesser–included charge of negligently hazarding a vessel, that agreement became the “functional equivalent” of a referral authorized under R.C.M. 601.
Essentially, the government asserted that the agreement was a new referral of the lesser-included charge of negligently hazarding a vessel, a charge that the commanding officer of the USS TARAWA was authorized to refer as a special court-martial convening authority. In support of their argument they cited United States v. Wilkins. (6) Wilkins was charged with larceny but entered into a pretrial agreement with the special court-martial convening authority in which he agreed to plead guilty to receiving stolen property. The offense of receiving stolen property was not included in the original referral of charges, nor is it a lesser-included offense of larceny. The court concluded that the pretrial agreement between Wilkins and the convening authority was the functional equivalent of a referral of the charge and specifications of receiving stolen property. The court’s based its decision on the rationale that while a referral is a jurisdictional prerequisite, the form of the referral is not jurisdictional. The unusual form of the referral was therefore a nonjurisdictional irregularity in the trial process. (7)
The court distinguished Wilkins from the case at hand. In Wilkins, the convening authority had the authority to refer both the larceny and receiving stolen property charges to the special court-martial, and the court-martial had subject matter jurisdiction over both of the offenses. Henderson involved a challenge to the jurisdiction of a special court-martial to try a non-mandatory capital offense in the absence of authorization from either the officer exercising general court-martial jurisdiction over the accused or from the Secretary of the Navy–it was not simply a challenge to the “form” of the referral. The special court-martial lacked jurisdiction ab initio. “[W]hen a criminal action is tried before a court which does not have jurisdiction, the entire proceedings are a nullity.” (8)
The primary distinction between this case and Bancroft is that Henderson was not convicted of a capital offense but only of a noncapital, lesser-included offense. That distinction, however, does not change the result. Because the offense of negligently hazarding a vessel never achieved the status of an independent charge, the court’s jurisdiction over it derived only from the improperly referred capital offense of willfully hazarding a vessel, an thus rises and falls with the jurisdiction over the greater offense. To recognize the pretrial agreement in this case as the “functional equivalent” of a new referral would require the court to find jurisdiction where it does not exist, which the court declined to do.
V. UNDER THE GENERAL PRINCIPLES OF NOTICE PLEADING, WHEN A SPECIAL COURT-MARTIAL CONVENING AUTHORITY REFERS A CAPITAL CHARGE, DOES IT IMPLICITLY REFER A LESSER-INCLUDED NONCAPITAL OFFENSE AT THE SAME TIME?
Lastly, the government argued that when the special court-martial convening authority referred the charge of willfully hazarding a vessel to the special court-martial, it implicitly referred the lesser-included offense of negligently hazarding a vessel at the same time, under the general principles of notice pleading relying on United States v. Virgilito, (9) that a lesser-included offense does not have to be independently referred if the allegations “fairly embrace the elements of the lesser offense and thus give adequate notice to the accused of the offenses against which he must defend.” (10)
The court found that Virgilito did not apply in the case at hand, as it did not involve any defect in the court’s jurisdiction over the originally preferred charge. Henderson’s special court-martial had no jurisdiction to try a capital charge without authorization from either the officer exercising general courtmartial jurisdiction over the accused or from the Secretary of the Navy. Since the lesser-included charge of negligently hazarding a vessel was never formally referred under R.C.M. 601, it was dependent on the greater charge and was fatally tainted by the lack of jurisdiction.
Unless authorized by the officer exercising general court-martial jurisdiction, or by regulation by the Secretary concerned, an officer exercising special court-martial jurisdiction does not have authority to refer a nonmandatory capital charge to trial. Additionally, the officer exercising special court-martial jurisdiction does not have the authority to refer a noncapital lesser-included charge of a capital charge to trial, unless it has been formally referred.
(1) United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004).
(2) Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM], Part IV, para. 34.e.
(4) United States v. Bancroft, 3 C.M.A., 11 C.M.R. 3 (1953).
(5) Id. at 11.
(6) United States v. Wilkins, 29 M.J. 421 (C.M.A 1990).
(7) Id. at 424-25.
(8) Bancroft, 3 C.M.A. at 11, 11 C.M.R. at 11.
(9) United States v. Virgilito, 22 C.M.A. 394, 396, 47 C.M.R. 331, 333 (1973).
MAJOR MIKE RODERICK *
Major Mike Roderick (B.S., Northwestern State University; J.D., Southern University Law Center) is a Judge Advocate with the United States Air Force currently assigned as an instructor, International and Operations Law Division, Air Force Judge Advocate General School, Maxwell Air Force Base, Alabama. He is a member of the Bar in the state of Texas and Louisiana.
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