United States v. King, (2023)

Appellant contends that his court-martial was improperly constituted. His argument is that a detailed panel member was absent without being excused by the convening authority for “ ‘good cause shown on the record’ ” in violation of Rule for Courts-Martial (R.C.M.) 505(c)(2)(A)(i).¹ The Government responds that the objection that Appellant now raises was waived by operation of law under R.C.M. 905(e) because Appellant did not make the objection at trial. The Government asserts that we therefore cannot consider it. The Court today holds that Appellant did not waive his objection but merely forfeited it. Accordingly, the Court determines that it must review the issue for plain error. Applying plain error review, the Court determines that Appellant has demonstrated an error, that the error was clear and obvious, but that Appellant has not shown that this error caused him prejudice. The Court therefore concludes that Appellant is not entitled to relief.

I reach the same result as the Court but for a different reason. Unlike the Court, I agree with the Government that Appellant's objection was waived by operation of law and not merely forfeited. I write separately to explain my disagreement.

I.

Waiver differs from forfeiture. When an objection to an alleged error is waived, this Court cannot review the objection on appeal. United States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020). In contrast, if the objection is merely forfeited, this Court may review the issue for plain error. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). When conducting a plain error review of a nonconstitutional issue, this Court may grant relief only if the appellant proves that there was an error, that the error was clear and obvious, and that the error caused material prejudice. United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018).

In this case, Appellant did not object to the absence of a member of his court-martial until after his trial was over. R.C.M. 905(e) specifies the “[e]ffect of failure to raise defenses or objections.” This provision contains three sentences. The first two sentences are not applicable to this case because they concern only the pretrial objections listed in R.C.M. 905(b)(1)-(6), which do not include an objection based on the absence of an unexcused court member. Id. The third sentence then says: “Other motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is adjourned for that case and, unless otherwise provided in this Manual, failure to do so shall constitute waiver.” Id.

The Government argues that Appellant's objection to the composition of his court-martial fits within the third sentence of R.C.M. 905(e). I agree. Appellant's objection is an example of the “[o]ther ․ objections” that the third sentence of R.C.M. 905(e) contemplates because it is not one of the objections listed in R.C.M. 905(b)(1)-(6). The Government therefore argues that the objection is waived by operation of law. I also agree with this assessment. Appellant's objection is one that “must be raised before the court-martial is adjourned.” Accordingly, because Appellant did not raise it, I conclude that his “failure to do so ․ constitute[s] waiver” under the plain meaning of R.C.M. 905(e).²

II.

The question of whether Appellant waived or forfeited his objection would require no more discussion except for one significant problem: our precedents concerning the consequences of failing to make objections to the composition of courts-martial are all over the map. In at least one precedent, this Court has held that an objection to the composition of a court-martial “was waived” because “it was not raised at trial,” and the Court accordingly did not review the issue. United States v. Curtis, 44 M.J. 106, 133 (C.A.A.F. 1996). Other precedents, however, have treated the failure to raise such objections as a forfeiture and have applied plain error review. E.g., United States v. Mack, 58 M.J. 413, 417 (C.A.A.F. 2003); United States v. Adams, 66 M.J. 255, 257, 259 (C.A.A.F. 2008); United States v. Sargent, 47 M.J. 367, 368, 369 (C.A.A.F. 1997). Still others have stated that a failure to raise such objections constitutes a “waiver” but then have applied what appears to be plain error review nonetheless. E.g., United States v. Cook, 48 M.J. 434, 436 (C.A.A.F. 1998); United States. v. McElroy, 40 M.J. 368 (C.M.A. 1994).

I see no way of reconciling these conflicting decisions. Significantly, not one of these cases explains why the Court was treating a failure to object as either a waiver or a forfeiture. In these circumstances, I do not think that any one of these decisions has much precedential weight. See Bryan A. Garner et al., The Law of Judicial Precedent 229 (2016 ed.) (explaining that “a court won't normally accept as binding precedent a point that was passed by in silence”); see also Webster v. Fall, 266 U.S. 507, 511 (1925) (holding that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents”). Accordingly, in deciding this appeal, my view is that the Court should simply start over and apply the plain text of R.C.M. 905(e)’s third sentence. Following this course leads me to conclude that Appellant's objection was waived by operation of law. On that basis, I would affirm the findings and sentence of the court-martial.

III.

Sometimes deciding whether a failure to make an objection should be treated as a waiver or a forfeiture may have significant consequences. These consequences—rightly or wrongly—may tilt the scales of judicial interpretation. But this certainly is not one of those cases. The waiver-versus-forfeiture issue ultimately does not change the result of this case because the Court and I agree that Appellant is not entitled to relief. In addition, the disagreement over how to interpret the version of R.C.M. 905(e) that applies to this case will likely have little import in future cases. As the Court explains, the President recently amended R.C.M. 905(e) to provide that failure to raise “other ․ objections” shall “constitute forfeiture, absent affirmative waiver.” R.C.M. 905(e)(2) (2019 ed.). Whatever the interpretation of R.C.M. 905(e) (2016 ed.) is in this appeal, future cases should follow the plain meaning of the new text in R.C.M. 905(e) (2019 ed.).

In addition, except in a most unusual case, regardless of whether a court decides that the accused's failure to object to a member's absence should be treated as a waiver or a forfeiture, the outcome will be the same. If the objection is waived, the court cannot consider it. Plain error review is more permissive, but it still requires the appellant to prove prejudice. Appellants generally cannot prove prejudice even if they can show that a court member was absent without being excused “[b]y the convening authority for good cause shown on the record,” as R.C.M. 505(c)(2)(A)(i) requires. To borrow the words of the Court, guessing how the absent member would have voted will be, in most instances, nothing more than “rank speculation.”

Confronted with this reality, Appellant argues that prejudice should be presumed. Some older precedents directly support this view. E.g., United States v. Greenwell, 12 C.M.A. 560, 562, 31 C.M.R. 146, 148 (1961). But more recent precedents have applied plain error review without presuming prejudice. E.g., Mack, 58 M.J. at 417; Adams, 66 M.J. at 259; Sargent, 47 M.J. at 369. Once more seeing no way to reconcile these precedents, I would again return to first principles. As explained above, plain error review requires an appellant to prove prejudice. Robinson, 77 M.J. at 299. Accordingly, even if an objection to the composition of a court-martial is merely forfeited, and not waived, prejudice should not be presumed.

FOOTNOTES

1.   The parties agree that the version of the R.C.M. that appears in the Manual for Courts-Martial, United States (2016 ed.) (MCM), applies to this case.

2.   The President's decision to use the term “waiver” in the third sentence of R.C.M. 905(e) did not violate Article 36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836 (1982), the statute that authorized the President to promulgate the rule in 1984. Article 36, UCMJ, granted the President discretion to prescribe procedural rules that conform “so far as he considers practicable” to the rules applied in criminal cases tried in the United States district courts. The article, however, did not require the President to explain why he considered it practicable to follow some of the Federal Rules of Criminal Procedure but not others. Reviewing this Court's past decisions, Judge Everett has written that “the President's determination of practicability seems nonreviewable, unless it clashes with a specific provision of the Uniform Code or the Constitution.” Robinson O. Everett, Some Comments on the Role of Discretion in Military Justice, 37 Law & Contemp. Probs. 173, 180 (1972). But even if this Court were to insist that the President's determination of practicability have some rational basis, that standard would be easily met here.When the Joint Service Committee on Military Justice (JSC) drafted the MCM (1984 ed.), it announced that the first of its “basic goals” was that “the new Manual was to conform to Federal practice to the extent possible, except where the Uniform Code of Military Justice requires otherwise or where specific military requirements render such conformity impracticable.” MCM, Analysis app. 21 at A21-1 (1984 ed.) (citing Article 36, UCMJ) [hereinafter Analysis]. Accordingly, the JSC carefully considered analogous provisions in the Federal Rules of Criminal Procedure when it drafted R.C.M. 905(e). In its Analysis of R.C.M. 905(e), the JSC explained:The first two sentences in this subsection are taken from Fed. R. Crim. P. 12(f) ․ The third sentence is based on paragraph 67a of MCM, 1969 (Rev.). The Federal Rules of Criminal Procedure do not expressly provide for waiver of motions other than those listed in Fed. R. Crim. P. 12(b) ․ Nevertheless, it has been contended that because Fed. R. Crim. P. 12(b)(2) provides that lack of jurisdiction or failure to allege an offense “shall be noticed by the court at any time during the pendency of the proceedings,” “it may, by negative implications be interpreted as foreclosing the other defenses if not raised during the trial itself.” 8A J. Moore, Moore's Federal Practice ¶ 12.03[1] (1982 rev. ed.)․ There is no reason why other motions should not be waived if not raised at trial. Moore's, supra at ¶ 12.03[1]; accord C. Wright, Federal Practice and Procedure § 193 (1969).Id. at A21-47-A21-48. Although the JSC's Analysis “does not necessarily reflect the views of the President in approving” the R.C.M., id. at A21-3, the explanation in the Analysis identifies a rational basis for the President's exercise of discretion in using the word “waiver” in the third sentence of R.C.M. 905(e).

Judge MAGGS, concurring in the judgment.