United States v. King (2023)

I concur with the majority's reasoning and join the Court's opinion in full. I write separately to offer an additional reason why I think the Court properly treats the word “waived” in the final sentence of the pre-2019 version of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.) as “forfeited,” rather than as “waived.”¹

Article 36(a) expressly delegates to the President the authority to prescribe procedural and evidentiary rules for conducting courts-martial, but that authority is not unlimited. The President's rules must, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Article 36(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836(a) (2012).² In the federal civilian courts, the general rule is that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention.” Fed. R. Crim. P. 52(b). Thus, civilian federal courts of appeals generally review errors not timely raised in federal district court for plain error absent affirmative waiver. See United States v. Olano, 507 U.S. 725, 731-32 (1993) (explaining the operation of Fed. R. Crim. P. 52(b)). If the President intended the final sentence of R.C.M. 905(e) (2016 ed.) to preclude the military appellate courts from reviewing “[o]ther motions, requests, defenses, or objections” not raised at trial for plain error, then that would render R.C.M. 905(e) (2016 ed.) a significant departure from the “principles of law ․ generally recognized in the trial of criminal cases in the United States district courts.” Article 36(a), UCMJ; see Hormel v. Helvering, 312 U.S. 552, 557 (1941) (“A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with ․ the rules of fundamental justice.”).

Article 36(a), UCMJ, would permit such a departure if the President considers adherence to federal practice impracticable. But neither the President in the Manual for Courts-Martial, United States (MCM) nor the Government in this case has offered any explanation why it would be impracticable for the military appellate courts to review errors that were not raised by the parties at trial. As the majority notes, this Court has long interpreted R.C.M 905(e)—at least in some circumstances—to impose forfeiture rather than waiver, see United States v. King, __ M.J. __, __ (7-8) (C.A.A.F. 2023), but the Government has not argued that those opinions have made appeals in those types of cases impracticable. Moreover, the President's recent amendment to R.C.M. 905(e)—which replaces “waiver” with “forfeiture, absent an affirmative waiver”—is strong evidence that the President considers conformity with federal practice to be practicable. See R.C.M. 905(e) (2019 ed.); see also MCM, Analysis of the Rules for Courts-Martial app. 15 at A15-14 (2019 ed.) (explaining the recent amendment).

Interpreting the final sentence of the pre-2019 version of R.C.M 905(e) (2016 ed.) as barring appellate review of all issues not raised at trial would represent a significant deviation from practice in the federal courts. Absent any indication from the President why the general federal practice would be impracticable in the military, such an interpretation would potentially run afoul of Article 36(a), UCMJ; see United States v. Kohlbek, 78 M.J. 326, 333 (C.A.A.F. 2019) (interpreting Military Rule of Evidence 707 to conform with federal practice in part because although “[t]he presence of a unique military concern could make following the federal practice ․ impracticable and justify a divergent rule. ․ no such military concern is obvious here” (citations omitted)). Because “[a]n interpretation of a statute or rule that renders it valid is preferable to an interpretation that would invalidate the rule,” I agree that we should interpret the final sentence of R.C.M 905(e) (2016 ed.) as imposing forfeiture rather than waiver. Kohlbek, 78 M.J. at 332 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 66 (2012)). I therefore concur that Appellant forfeited the issue and plain error is the appropriate standard of review in this case.

FOOTNOTES

1.   The first two sentences of the pre-2019 version of R.C.M. 905(e) (2016 ed.) address the waiver of objections, motions, and requests that must be raised in a pretrial motion. These sentences parallel Fed. R. Crim. P. 12(c)(3) and are not at issue in this case.

2.   Article 36(a), UCMJ, also imposes a second limitation: the President's rules generally may not be “inconsistent with” the other provisions of the UCMJ. Whether interpreting R.C.M. 905(e) (2016 ed.) as barring appellate review of all issues not raised at trial is “inconsistent with” the military appellate courts’ statutory authority to determine whether the findings and sentence set forth in the entry of judgment are correct in law is a more nuanced and complicated question that need not be resolved here.

Judge HARDY, concurring.