U.S. v. Fry, No. 11-0396-MC (C.A.A.F. 2012)

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UNITED STATES, Appellee v. Joshua D. FRY, Private U.S. Marine Corps, Appellant No. 11-0396 Crim. App. No. 201000179 United States Court of Appeals for the Armed Forces Argued November 3, 2011 Decided February 21, 2012 STUCKY, J., delivered the opinion of the Court, in which RYAN, J., and COX, S.J., joined. BAKER, C.J., filed a dissenting opinion, in which ERDMANN, J., joined. Counsel For Appellant: (argued). Lieutenant Commander Brian L. Mizer, JAGC, USN For Appellee: Lieutenant Kevin D. Shea, JAGC, USN (argued); Brian K. Keller, Esq. (on brief); Colonel Kurt J. Brubaker, USMC. Military Judges: J. G. Meeks and John R. Ewers Jr. THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. United States v. Fry, No. 11-0396/MC Judge STUCKY delivered the opinion of the Court. We granted review to determine whether jurisdiction existed pursuant to Article 2, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802 (2006), to try Appellant in a court-martial, despite an order from a California court that established a limited conservatorship over Appellant. We hold that jurisdiction existed pursuant to Article 2(c).1 I. In accordance with Appellant’s pleas, a general courtmartial by military judge alone found Appellant guilty of two specifications of being absent without leave, four specifications of possessing child pornography, and fraudulent enlistment in violation of Articles 83, 86, and 134, UCMJ, 10 U.S.C. §§ 883, 886, 934 (2006). Appellant was sentenced to a bad-conduct discharge, confinement for four years, and forfeiture of all pay and allowances. The convening authority approved the sentence but suspended all confinement in excess of twelve months for twelve months in accordance with the pretrial agreement. The United States Navy-Marine Corps Court of United States v. Fry, NMCCA Criminal Appeals (CCA) affirmed. 1 Oral argument in this case was heard at the Global Reach Conference Planning Center, Scott Air Force Base, Illinois, as part of the Court’s “Project Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed as part of a public awareness program to 2 United States v. Fry, No. 11-0396/MC 201000179, 2011 CCA LEXIS 5, at *14–*15, 2011 WL 240809, at *5 (N-M. Ct. Crim. App. Jan. 27, 2011) (unpublished). A. Appellant was sixteen years old and living in California when he met Gunnery Sergeant (GySgt) Matthew Teson, a Marine Corps recruiter, at a Young Marine function. When Appellant became an appropriate age for recruitment, GySgt Teson contacted Appellant. Appellant, however, was unavailable for enlistment because he was leaving the recruiting district for a school in Colorado for adolescents with psychiatric, emotional, or behavioral problems. Before Appellant left for Colorado, his grandmother petitioned a California state court to establish a limited conservatorship over Appellant, because Appellant had autism,2 had been arrested for stealing and carrying a “dirk or dagger,” and was alleged to be unable to provide for his needs for health, food, clothing, or shelter. The petition further alleged that Appellant could not “control his impulsivity.”3 Based on these allegations, the California court, after an demonstrate the operation of a federal court of appeals and the military justice system. 2 Evidence in the record indicated that Appellant has a high functioning variety of autism. 3 One doctor diagnosed Appellant with an “impulse disorder, NOS [not otherwise specified].” Although the opinion may discuss Appellant’s condition in other words, it is in light of this diagnosis. 3 United States v. Fry, No. 11-0396/MC uncontested hearing, entered an order that both restricted Appellant’s ability to, and gave Appellant’s grandmother the power to choose a residence, access confidential papers and records, contract, have the exclusive right to give or withhold medical treatment, and make all decisions concerning Appellant’s education. B. When Appellant was approximately twenty years old, he returned from the Colorado school still subject to the limited conservatorship. Shortly after returning, he contacted GySgt Teson about enlisting in the Marines. After passing the Armed Services Vocational Aptitude Battery (ASVAB), certifying that he understood the terms of his enlistment, and obtaining his birth certificate and social security card from his grandmother, Appellant undertook the obligations, duties, and training of a Marine and, in turn, received pay and allowances. initially had issues in basic training: Appellant he stole peanut butter and hid it in his sock; he urinated in his canteen; he refused to eat; and he failed to shave and then lied about it. During these struggles, Appellant visited the medical staff and informed the medical officer that he was autistic and an asthmatic. When Appellant’s limited conservator was called and asked about the autism diagnosis, she acknowledged that Appellant was autistic. A medical officer informed the limited 4 United States v. Fry, No. 11-0396/MC conservator that Appellant would be sent home. However, Appellant remained, because he indicated that he was motivated and desired to return to training and was found medically fit to do so. After the incident in medical, Appellant returned to training and completed initial drill, first phase, the initial physical fitness test, second phase, rifle qualification, the series commander interview, final drill, and the Crucible4 without a recorded incident. The limited conservator not only voiced no explicit objection to Appellant’s becoming a Marine, she also attended Appellant’s graduation ceremony. Appellant committed his offenses approximately two to three months after being assigned to routine duty while waiting to attend infantry school. Appellant objected at trial that the court-martial lacked personal jurisdiction over him. II. “Perhaps no relation between the Government and a citizen is more distinctively federal in character than that between it and members of its armed forces.” United States v. Standard Oil Co., 332 U.S. 301, 305 (1947), result superseded by statute, 4 The Crucible is a fifty-four-hour test of a Marine recruit’s skills that emphasizes teamwork, perseverance, and courage. It is the final test before a recruit becomes a Marine. The Crucible: The Recruits’ Final Test, United States Marine Corps, http://www.marines.com/main/index/making_marines/recruit_trainin g/training_matrix/the_crucible (last visited Jan. 25, 2012). 5 United States v. Fry, No. 11-0396/MC Medical Care Recovery Act, Pub. L. No. 87-693, § 1, 76 Stat. 593 (1962). For this reason, “the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority.” Id. at 305-06 (citing Tarble’s Case, 80 U.S. 397 (13 Wall. 397) (1872); Kurtz v. Moffitt, 115 U.S. 487 (1885)). Federal law, not state law, is the benchmark by which courts measure whether a person is subject to court-martial jurisdiction. See United States v. Blanton, 7 C.M.A. 664, 665–66, 23 C.M.R. 128, 129-30 (1957). Appellant, however, asserts that his situation is different. He claims that the decision of the California court as to his capacity to contract is binding on courts-martial under the federal full faith and credit statute, 28 U.S.C. § 1738 (2006). This statute, which dates to 1790, states that authenticated state judicial proceedings are entitled to the same full faith and credit in “every court within the United States” as they have in the courts of their own state. We have our doubts that the full faith and credit statute was ever intended to import state statutory or case law into an enlistment contract, which is governed by federal law. Standard Oil, 332 U.S. at 305; Lonchyna v. Brown, 491 F. Supp. 1352, 1353 n.1 (N.D. Ill. 1980); Colden v. Asmus, 322 F. Supp. 1163, 1164 (S.D. Cal. 1971). In considering the issue, however, we remain 6 United States v. Fry, No. 11-0396/MC mindful of the Supreme Court’s warning that “[c]ourts should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37 (2009)). Here, determining whether court-martial jurisdiction existed pursuant to Article 2(b)5 would require determination of important issues of federalism and comity, which are unnecessary since Article 2(c) offers an alternative means of resolving this case.6 III. Article 2(c) provides that: Notwithstanding any other provision of law, a person serving with an armed force who -(1) submitted voluntarily to military authority; (2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; 5 Article 2(b) provides that “[t]he voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.” 6 See generally the strictures on constitutional adjudication enunciated in Justice Brandeis’ famous concurrence in Ashwander v. TVA, 297 U.S. 288, 341 (1936). 7 United States v. Fry, No. 11-0396/MC is subject to this chapter until such person’s active services has been terminated in accordance with law or regulations promulgated by the Secretary concerned. Article 2(c), UCMJ (emphasis added). Courts have generally recognized that the “notwithstanding” language is a clear statement of law indicating the obvious intent of the drafters to supersede all other laws. See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (citing a number of circuit court opinions). The practical effect of the “notwithstanding” clause is that courts-martial need not concern themselves with the legal effect of other “clause[s] in . . . statute[s], contract[s], or other legal instrument[s],” when deciding whether they have jurisdiction. Black’s Law Dictionary 1345 (9th ed. 2009) (defining “provision”). Congress has the power to override state law that would interfere with the servicemember-military relationship, given its distinctively federal character. See Standard Oil Co., 332 U.S. at 305; cf. Herrera-Inirio v. I.N.S., 208 F.3d 299, 307-08 (1st Cir. 2000) (holding, in the realm of immigration, that when Congress possesses plenary authority over the subject matter at issue, “it may freely displace or preempt state laws in respect to such matters”) (citations omitted). Thus, in assessing whether the accused in this case met the mental competency requirements for jurisdiction pursuant to Article 2(c), the military judge was not bound by the California order, even 8 United States v. Fry, No. 11-0396/MC assuming it was directly on point. The military judge was only required to review the relevant evidence, including the order, to determine whether the requirements of Article 2(c) were met. IV. A. Our most recent and expansive discussion of Article 2(c) is United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003), in which we held that Article 2(c) sets out a three-part analytical framework for finding jurisdiction. Id. at 220. The threshold question is whether the person is “‘serving with an armed force.’” Id. If that can be established, the analysis proceeds to the four-part test laid out in Article 2(c), which requires findings that the accused: voluntarily submitted to military authority; met the mental and age requirements of 10 U.S.C. §§ 504 and 505; received military pay or allowances; and performed military duties. Phillips, 58 M.J. at 220. If all four parts of the test are met, then the person is subject to court-martial jurisdiction, until the person is released pursuant to law or regulation. Id. The only seriously contested issue here is whether Appellant was mentally competent, within the meaning of the statute.7 7 Everyone, at all relevant times, acted as though Appellant was a validly enlisted, active duty member of the armed services. He was performing routine duties, in uniform, on a regular basis when he committed his offenses; thus, Appellant was serving with 9 United States v. Fry, No. 11-0396/MC Contrary to the dissent’s suggestion, we recognize that voluntariness is a separate and distinct requirement under Article 2(c) and that it retains its usual meaning. Black’s Law Dictionary, supra, at 1710–11 (“voluntary” is defined as “[d]one by design or intention” or “[u]nconstrained by interference; not impelled by outside influence”). Furthermore, voluntariness remains a question evaluated under the traditional rubric of looking at the totality of the relevant circumstances, including the individual’s mental state. Cf. Brady v. United States, 397 U.S. 742, 749 (1970). Evidence either that Appellant’s actions were compelled by an outside influence, like duress or coercion, or that Appellant could not understand the nature or significance of his actions might be reasons to find that Appellant has not acted voluntarily. case. There is no evidence of duress or coercion in this Thus, we are left only to consider whether Appellant understood the nature or significance of his actions. This question necessarily requires courts to consider Appellant’s mental capacity, which inevitably overlaps with the mental capacity determination in Article 2(c)(2). If Appellant the armed forces. Appellant has not argued that he was drunk or under duress when he attempted to enlist or continued to serve; as such, there is no basis to question the voluntariness of Appellant’s actions. It is also beyond dispute that Appellant was old enough to enlist. He received pay and allowance and, as 10 United States v. Fry, No. 11-0396/MC had mental capacity under Article 2(c)(2), then it is surely evidence that he had the requisite mental capacity to understand the significance of submitting to military authorities, i.e., it would tend to show that he acted voluntarily in that regard.8 Thus, we turn our attention to the question of mental competency. B. “‘When an accused contests personal jurisdiction on appeal, we review that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record.’” United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000)). Whether Appellant is mentally competent is a question of fact, and we will only set aside findings of fact if they are clearly erroneous. Cf. United States v. Barreto, 57 M.J. 127, 130 (C.A.A.F. 2002) noted above, performed routine duties. Finally, there is no evidence that Appellant was or has been released from service. 8 While we sympathize with the dissent that mental disability encompasses a broad spectrum of conditions, and we recognize that Appellant might not have been an ideal candidate for military service, we, nevertheless, are tasked with determining whether Appellant can be held criminally liable after purportedly becoming a member of the armed forces. Even though an accused’s location on the spectrum of mental disabilities may influence the result, whether the accused can be held criminally liable is a yes or no proposition, in that the accused either met the requirements for jurisdiction or he did not. 11 United States v. Fry, No. 11-0396/MC (concerning mental competency to stand trial (quoting United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993))). Section 504 sets out the standard in relevant part as “[n]o person who is insane . . . may be enlisted in any armed force.” 10 U.S.C. § 504(a). The general definition section states that “the word[] ‘insane’ . . . shall include every idiot, lunatic, insane person, and person non compos mentis.” (2006) (emphasis added). 1 U.S.C. § 1 Non compos mentis requires something more than merely suffering from a mental disease; the concept envisions someone that is “‘incapable of handling her own affairs or unable to function in society.’” Perry v. United States Dep’t of State, 669 F. Supp. 2d 60, 66 (D.D.C. 2009) (quoting Smith-Haynie v. Dist. Of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)); see also Webster’s Third New International Dictionary 1536 (1986) (defining non compos mentis as “wholly lacking mental capacity to understand the nature, consequences, and effect of a situation or transaction”). The clear purpose of § 504 was to codify something approximating the common law concept of capacity to contract, in that only those people may enlist who have the ability to understand what it means to enlist. See S. Rep. No. 96-197, at 122 (1979), reprinted in 1979 U.S.C.C.A.N. 1818, 1827 (noting that the new subsection (b) overrules United States v. Russo, 1 M.J. 134 (C.M.A. 1975) “by reaffirming the law as set forth by 12 United States v. Fry, No. 11-0396/MC the Supreme Court in In re Grimley, 137 U.S. 147”); In Re Grimley, 137 U.S. 147, 150 (1890) (noting that enlistment creates a “contractual relation between the parties; and the law of contracts . . . is worthy of notice”); id. at 152–53 (“Of course these considerations may not apply where there is insanity, idiocy, infancy, or any other disability which, in its nature, disables a party from changing his status or entering into new relations.”). Given that the concept codified in § 504 is akin to capacity to contract, those events that occurred before and after enlistment are relevant to determining the person’s mental condition on the date the enlistment was executed. Cf. Knott v. Pervere, 285 F. Supp. 274, 278 (D. Mass. 1968) (interpreting California law). Furthermore, “the weight of authority seems to hold that mental capacity to contract depends upon whether the allegedly disabled person possessed sufficient reason to enable him to understand the nature and effect of the act in issue. Even average intelligence is not essential to a valid bargain.” Cundick v. Broadbent, 383 F.2d 157, 160 (10th Cir. 1967). V. The military judge concluded that jurisdiction existed pursuant to Article 2(c), and he specifically found Appellant mentally competent. In particular, the military judge concluded that Appellant had “the capacity to understand the significance 13 United States v. Fry, No. 11-0396/MC of his enlistment.” Our review is limited to determining whether that conclusion was clearly erroneous. We find that it was not. The Government called Dr. Bruce T. Reed to testify about Appellant’s mental capacity. Dr. Reed had participated on Appellant’s Rule for Courts-Martial (R.C.M.) 706 board that occurred prior to trial. In that role, he had personally interviewed Appellant and reviewed his medical records. The results of the board were that Appellant was able to appreciate the nature and quality of the wrongfulness of his conduct and that Appellant had sufficient capacity to stand trial and cooperate in his defense. In response to a question about whether Appellant understood the significance of his enlistment, Dr. Reed testified a “partial yes.” When specifically asked if he would find that Appellant understood the significance of his enlistment by a preponderance of the evidence, he testified that “when you ask me 51 percent or more, I would have to say yes.” In contrast, the defense presented an affidavit from a psychologist, Dr. Julie E. Schuck, which stated in relevant part, “based upon my over ten years of clinical evaluation of [Appellant], do I believe that [Appellant] had the mental capacity to understand the significance of his enlistment in the military. My answer is no.” That opinion was based on Dr. Schuck’s belief that Appellant’s decision to enlist was “driven 14 United States v. Fry, No. 11-0396/MC by his long-term perseveration with being in the military . . . and the impulsive decision to do something without remotely considering the long-term consequences and his limitations. . . . [Appellant] pursued this plan based solely on desire and gratification, without critical analysis and reasoning.” When faced with conflicting evidence on whether a party is competent, the military judge does not err merely because some evidence points in the opposite direction of the military judge’s ultimate conclusion. See United States v. Morgan, 40 M.J. 389, 394 (C.M.A. 1994) (“Where there are underlying factual issues requiring resolution of conflicting testimony, the military judge’s findings of fact will be upheld ‘if fairly supported in the record’. . . .”) (citations omitted); In Re Rains, 428 F.3d 893, 902 (9th Cir. 2005) (“In the face of conflicting testimony, the bankruptcy court did not clearly err in discounting the theoretical speculation of Rains’s experts, or in finding that Rains was mentally competent to enter into the settlement agreement.”). Even though the military judge did not specifically cite either expert witness’s testimony in his written findings or analysis, he acknowledged that Appellant had been diagnosed “‘as suffering from obsessive compulsive symptoms . . . and [that Appellant] cannot control his impulsivity,’” 15 United States v. Fry, No. 11-0396/MC which were conclusions generally presented by Dr. Schuck’s affidavit and other evidence presented by defense counsel. The military judge concluded, however, that the surrounding circumstances did not sufficiently support the claim of impulsivity, assuming impulsivity alone would be enough to invalidate a contract, because “the accused largely (and ultimately) managed to conform his conduct to the requirements of the law (and orders and directives) throughout recruit training . . . .” The military judge also relied on the fact that Appellant passed the ASVAB and that Appellant overcame his initial struggles and successfully completed training without further negative reviews, which tended to show that Appellant could and did understand the need to conform his conduct to the standard set out for all Marines. In regard to the California court order, the military judge found that “[i]n toto, the evidence indicates that the probate court’s findings, while not perfunctory, provide little support for a presumption, much less a finding, that for the purposes of Article 2, UCMJ, the accused did not have the capacity to understand the significance of his enlistment.” This conclusion makes sense in the context of California law, that “[t]he 16 United States v. Fry, No. 11-0396/MC conservatee of the limited conservator shall not be presumed to be incompetent . . . .” Cal. Prob. Code § 1801(d) (West 2011).9 Admittedly, the military judge may have overstated matters when he claimed that “all of the evidence” pointed in one direction. But when reviewed as a whole, the military judge’s ruling indicates that he considered contrary evidence and ultimately found in the face of conflicting views that the evidence better supported a finding that Appellant was mentally competent and acted voluntarily. The military judge’s findings that Appellant met the requirements for jurisdiction under Article 2(c) are fairly supported by the record and, thus, are not clearly erroneous. VI. The judgment of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. 9 The military judge also found that the limited conservator did not object to Appellant’s enlistment, although she did voice her reservations and hostility to the idea. Although this conclusion is supported by the record, it is not an essential finding, since courts-martial are not bound by orders like the one in issue when determining whether the requirements of Article 2(c) are met. 17 United States v. Fry, No. 11-0396/MC BAKER, Chief Judge, with whom ERDMANN, Judge, joins (dissenting): SUMMARY The military judge concluded that “[a]ll of the evidence indicates that the accused had at and since the time he took the oath of enlistment the de facto capacity to contract and the actual capacity to understand the significance of enlisting in the armed forces.” The military judge further concluded that “[a]ll of the evidence indicates that the accused’s enlistment was voluntary” for the purpose of establishing personal jurisdiction. The military judge committed two errors in reaching these conclusions. First, “all of the evidence” does not indicate that Appellant had the capacity to enlist or do so voluntarily. Indeed, the evidence provided by Appellant’s psychologist indicates the opposite. Among other things, she stated in a declaration that: As a result of his conditions, he is preoccupied with meeting his immediate needs at the risk of his long-term benefits. His brain does not utilize critical thought and reasoning, as demonstrated by his impulsive behavior. Due to his autism and ADHD, [Appellant] fails to weigh the consequences of his actions. . . . . . . . I have been asked whether in my professional opinion, and based upon my over ten years of clinical evaluation of [Appellant], do I believe that [Appellant] had the mental United States v. Fry, No. 11-0396/MC capacity to understand the significance of his enlistment in the military. My answer is no. Nevertheless, this and other evidence running counter to the Government’s position was not addressed in the military judge’s analysis of Appellant’s motion to dismiss. Thus, we cannot know if he reached the right decision regarding jurisdiction, because he did not reach it the right way -- by analyzing and weighing all the evidence before the court, including and in particular, the testimony and declaration of Appellant’s long-term treating psychologist. Neither did the military judge define the critical concept at issue in this case: What it means to “voluntarily enlist.” Ordinarily, a military judge is presumed to know the law and apply it correctly. (C.A.A.F. 2004). United States v. Rodriguez, 60 M.J. 87, 90 However, in the absence of a statutory definition, case law, or a definition agreed to by the parties at trial, we cannot determine if the military judge applied the correct standard, or even what standard he used in applying Article 2(c)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802(c)(1) (2006). To the extent the military judge equated the capacity to enlist with the simple presence or absence of insanity, he erred. As in the plea context, the capacity to do something voluntarily requires contextual analysis, not a simple 2 United States v. Fry, No. 11-0396/MC determination that someone is legally sane. As recognized by the United States Supreme Court and this Court, this is especially important where the spectrum of developmental disorders is at issue. As a result, the military judge abused his discretion in ruling on the defense motion to dismiss and I respectfully dissent. BACKGROUND Appellant was diagnosed with autism in 1996. He was subsequently diagnosed with obsessive compulsive symptoms, attention deficit hyperactivity disorder (ADHD), and oppositional defiant disorder (ODD). In 2006, he was sent to the Devereux Cleo Wallace Center in Denver, Colorado, after being expelled from his high school and in exchange for dismissal of related criminal charges for burglary, receiving stolen property, and carrying a dirk or dagger. The facility is a lockdown facility designed to treat children and adolescents who have “significant mental health and behavioral needs.” In January 2008, Appellant enlisted in the United States Marine Corps. At the time of his enlistment the United States Marine Corps knew or should have known that Appellant was not a suitable candidate for service. All parties to this case and the military judge, and the Court of Criminal Appeals agree on this fact. 3 United States v. Fry, No. 11-0396/MC Dr. Julie Schuck is a psychologist who treated Appellant as a patient for autism, ADHD, ODD, and a conduct disorder over a ten-year period between 1997 and 2006.1 Dr. Schuck declared that Appellant’s autism manifests itself in a fixation on military fantasy and impulsive behavior, including an inability “to weigh the consequences of his actions.” Specifically, she stated the following in a declaration to the court: [Appellant] maintains significant limitations in his ability to make non-superficial social connections. Also, as a result of his conditions, he is extremely impulsive, lacking judgment and reasoning skills necessary to make daily life decisions. Developmentally, he is mentally like a child at the age of 14. As a result of his conditions, he is preoccupied with meeting his immediate needs at the risk of his long-term benefits. His brain does not utilize critical thought and reasoning, as demonstrated by his impulsive behavior. Due to his autism and ADHD, [Appellant] fails to weight the consequences of his actions. His pursuit of gratifying his immediate needs fueled by his impulsivity have resulted in a long history of poor choices that evidence his lack of judgment and reasoning skills necessary to make life decisions. . . . What makes [Appellant’s] situation even more complicated is that his perceptual accuracy and reality testing are impaired, meaning he believes he 1 There is some inconsistency in the record as to when Appellant was initially diagnosed and the length of Dr. Schuck’s treatment. Ms. Fry’s declaration indicates that Fry was diagnosed in 1995 at the age of seven. The record indicates that Dr. Schuck treated Fry between 2000 and 2006, which would be a six-year period rather than a ten-year period. However, Dr. Schuck’s declaration provides that the treatment period was January 1997 through November 2007, with a break in treatment between July 2006 and October 2007, which would mean a total treatment period of just under ten years. 4 United States v. Fry, No. 11-0396/MC can take on more challenging tasks than he is capable of. . . . Given the limitations that I have described, [Appellant] is unable to independently handle his daily personal affairs, make important decisions, or manage his own money without significant structure and supervision. His plans and priorities focus on his immediate and often unrealistic desires, not on what is in his best interest in the long run. She also testified before the court reiterating what was in her declaration, including that Appellant suffered from autism, ODD, a conduct disorder, and ADHD, which is characterized by symptoms including “impulsivity and hyperactivity making it hard for him to make . . . thought out decisions.”2 She explained that a key obstacle for an individual with autism is impulse control, and that a large focus of treatment for autism is improving impulse control.3 At the time of Appellant’s enlistment, the Marine Corps recruiter knew or should have known that Appellant’s grandmother 2 The Government’s psychologist, Captain Bruce T. Reed, also testified at trial and, after stating “I’m going to hedge a bit,” indicated his belief that there was at least a fifty-one percent chance that Appellant understood the significance of enlisting. However, Dr. Reed had not treated Appellant for any period of time, was not familiar with Appellant’s full history or medical records, and did not know Appellant was subject to a conservatorship. More importantly for the purpose of this dissent’s analysis, the military judge did not address or weigh Dr. Reed’s testimony against the testimony and declaration of Dr. Schuck. 3 The Government argued on appeal that Dr. Schuck’s testimony contradicted her declaration and retreated from its position. That is not how I read the testimony, which is reproduced as Appendix A to this opinion. The declaration is reproduced in Appendix B. 5 United States v. Fry, No. 11-0396/MC had a limited conservatorship over Appellant and that Appellant had been treated for fifteen months in a mental health facility in Colorado for behavioral problems. All parties to this case and the military judge agree on this fact. The exercise of due diligence would also have revealed that while at the Colorado facility, Appellant received “psychiatric care and counseling to deal with [his] desire to view child pornography.” In 2009, Appellant was tried by general court-martial for several offenses including fraudulent enlistment for deliberately concealing that he had received psychiatric care and counseling to deal with his desire to view child pornography. The question before this Court is whether Appellant was subject to the personal jurisdiction of a military courtmartial. As the majority correctly concludes, this is a question of federal law, not state law.4 Under the Supremacy Clause, laws enacted by the United States pursuant to the Constitution are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary 4 As a result, I need not and do not reach a conclusion as to whether or how the Full Faith and Credit Clause applies only with respect to the state court proceeding. Whatever effect is given to the state court proceeding, if any, the question before this Court is whether the military judge erred in applying Article 2, UCMJ. 6 United States v. Fry, No. 11-0396/MC notwithstanding.” U.S. Const. art. VI. Indeed, the Supremacy Clause was designed: to avoid the introduction of disparities, confusions and conflicts which would follow if the Government’s general authority were subject to local controls. The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any state. United States v. Allegheny County, 322 U.S. 174, 183 (1944) (overruled on other grounds). Just as “it would make little sense to have the Government’s liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury,” Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 671 (1977), so too it would make little sense for the interpretation of an enlistment contract to depend on the fortuity of where the soldier happened to be when the enlistment contract was signed. “When an accused contests personal jurisdiction on appeal, we review that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record.” United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000). ANALYSIS Article 2, UCMJ, governs the validity of enlistment for the purpose of determining who is subject to the UCMJ. 7 Subsection United States v. Fry, No. 11-0396/MC (b) of the article states that “[t]he voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction.” Article 2(b), UCMJ, 10 U.S.C. § 802(b). Thus, by implication the text and case law indicates, if a person does not have the capacity to understand the significance of enlisting then a court-martial shall not have jurisdiction. However, subsection (c) establishes jurisdiction “[n]otwithstanding any other provision of law” when four conditions are met: a person serving with an armed force who –(1) submitted voluntarily to military authority; (2) met the mental capacity and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties. Article 2(c), UCMJ, 10 U.S.C. § 802(c). Appellant satisfied the second, third, and fourth of these conditions. The question before the military judge was whether Appellant had the capacity to voluntarily enlist. Because Article 2(c), UCMJ, applies “[n]otwithstanding any other provision of law,” in theory, one could lack the capacity to understand the significance of enlisting for the purposes of subsection (b), but nonetheless 8 United States v. Fry, No. 11-0396/MC voluntarily submit to military authority for the purpose of subsection (c)(1). But that would depend on the meaning of “voluntarily” in subsection (c)(1) and the extent to which it is coterminous with a “capacity to understand the significance of enlisting in the armed forces.” This critical term is not defined in this section of the UCMJ. Nor is the meaning of voluntarily for the purpose of Article 2(c)(1), UCMJ, addressed or defined in case law. At oral argument and in their briefs, the parties defined the term with reference to dictionary definitions and plain English descriptions. They did not agree on its meaning. The military judge did not state or provide a definition in his ruling. The majority fills this void by equating a lack of voluntariness with either duress and/or coercion or “the concept [of insanity] codified in § 504 [which] is akin to [the] capacity to contract.”5 2012). 5 United States v. Fry, __ M.J. __ (13) (C.A.A.F. In other words, unless a person is coerced, drunk, or Section 504 states: Insanity, desertion, felons, etc. -- No person who is insane, intoxicated, or a deserter from an armed force, or who has been convicted of a felony, may be enlisted in any armed force. However, the Secretary concerned may authorize exceptions, in meritorious cases, for the enlistment of deserters and persons convicted of felonies. 10 U.S.C. § 504(a) (2006). 9 United States v. Fry, No. 11-0396/MC insane he or she has the capacity to understand the significance of enlisting and voluntarily submitting to military authority. As both sides of the debate recognize, mental capacity and not coercion is the issue at stake in this case. However, there is disagreement on whether the concepts embedded in 10 U.S.C. § 504 are “akin to” and determinative of the “capacity to contract.” In my view, the definition fails for four reasons. First, Congress placed the reference to the 10 U.S.C. § 504 insanity standard in a separate subsection of Article 2(c), UCMJ, thus the act of doing something voluntarily for the purpose of subsection (1) must mean something more than that one meets the “mental competence” requirement for the purpose of subsection (2). In other words, interpreting “voluntarily” in subsection (1) to mean the same thing as “mental competence” in subsection (2), as the majority does, violates “a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or significant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). Second, hinging the capacity to “submit voluntarily to military authority” on the insanity prohibition of section 504 turns the nuance of mental health and the spectrum of developmental disabilities into a yes or no question, rather than the spectrum of conditions that actually exists. 10 See Dep’t United States v. Fry, No. 11-0396/MC of Defense Instr. 6130.03 Medical Standards for Appointment, Enlistment, or Induction in the Military Services encl. 4 para. 29 (Apr. 28, 2010 (incorporating Change 1, Sept. 13, 2011)) [hereinafter DoD I 6130.03].6 Thus, while the § 504 standard may offer clarity and simplicity for lawyers, it does not reflect the range of mental health conditions and disabilities that may actually affect the capacity of recruits to voluntarily enlist. Third, such a standard is inconsistent with the approach of the Supreme Court and this Court in assessing whether pleas are voluntary. Voluntary is a term familiar to the plea process if not to Article 2, UCMJ, jurisprudence. Waiver of a guilty plea must be not only “voluntary” but also “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (1970). Brady v. United States, 397 U.S. 742, 748 The voluntariness of a plea “can be determined only by considering all of the relevant circumstances surrounding it.” Id. at 749. To ensure that a plea is voluntary and to prevent improper terms being imposed: the military judge must assure on the record that the accused understands the meaning and effect of each 6 The regulation refers to autism as “autistic spectrum disorders.” For our purposes, it does not matter where Appellant fell on the autism spectrum since the military judge’s error was not based on where Appellant fell on the spectrum, but in failing to define the term “voluntary” and in failing to address and analyze all the evidence before the court regarding Appellant’s capacity to voluntarily submit to military authority. 11 United States v. Fry, No. 11-0396/MC provision in the pretrial agreement; as well as make sure that the written agreement encompasses all the understandings of the parties and that they agree with his interpretation of the plea bargain. United States v. Bartley, 47 M.J. 182, 186 (C.A.A.F. 1997) (quoting United States v. Jones, 23 M.J. 305, 308 (C.M.A. 1987)) (emphasis added). Certainly, this Court has not upheld or rejected pleas solely on the basis of whether a person has been deemed sane. Though it is true that one who is insane cannot act voluntarily, that does not prove the corollary that someone who is sane always acts voluntarily. Rather, where bipolar conditions are in play, for example, the Court has looked to how a particular condition affects the accused to determine whether pleas are knowing and voluntary. In United States v. Harris, for example, we held that an accused’s plea was improvident where some of the conflicting post-trial evidence demonstrated that he had been unable to appreciate the wrongfulness of his conduct. 61 M.J. 391, 393, 398-99 (C.A.A.F. 2005). In United States v. Shaw, however, we concluded that the “mere possibility” of a conflict with a guilty plea was raised where an accused had merely claimed he suffered from bipolar disorder but presented no additional evidence that he in fact suffered from the condition or that it raised a substantial question 12 United States v. Fry, No. 11-0396/MC regarding his mental responsibility. 64 M.J. 460, 464 (C.A.A.F. 2007). Courts are especially careful in evaluating pleas in the case of developmentally disabled persons to ensure that they are voluntary. See, e.g., Gaddy v. Linahan, 780 F.2d 935, 945-47 (11th Cir. 1986) (holding that the trial judge had not adequately explained the nature of the crime and its elements to satisfy due process where the defendant was “illiterate and possesses minimal mental capacity” and “[h]is own attorney characterized him as ‘mentally retarded to some degree’”); United States v. Duhon, 104 F. Supp. 2d 663, 671 (W.D. La. 2000) (noting the need for sensitivity to the differences between mentally ill and “mentally retarded” defendants in assessing competency). Finally, equating capacity and voluntary action to insanity runs counter to our common understanding of not only developmental disabilities but the plain meaning of what it means to act in a voluntary manner.7 7 A voluntary act has been Department of Defense regulations now prohibit individuals with autism from joining the armed forces: “Unless otherwise stipulated, the conditions listed in this enclosure are those that do NOT meet the standard by virtue of current diagnosis, or for which the candidate has a verified past medical history.” DoD I 6130.03 encl. 4 para. 2. One such condition is “[p]ervasive developmental disorders . . . including Asperger Syndrome, autistic spectrum disorders, and pervasive developmental disorder -- not otherwise specified.” Id. at para. 29.C. 13 United States v. Fry, No. 11-0396/MC defined as an act that is “[d]one by design or intention.” Black’s Law Dictionary 1710 (9th ed. 2009). A person cannot knowingly and voluntarily do something if that person does not have the capacity to understand what he or she is doing. In this case, the military judge did not define the term “voluntarily” and therefore we do not know against what measure of “voluntary” Appellant’s condition was adjudicated. In the absence of an agreed-upon or understood definition, and in the context here, this was an abuse of discretion. In any event, determination as to whether an action has been taken in a voluntary manner requires individual adjudication of a particular person’s condition and circumstance, not per se reference to § 504. Thus, the military judge also abused his discretion in analyzing the facts. First, the military judge plainly erred when he concluded that “[a]ll of the evidence indicates that the accused’s enlistment was voluntary.” He also concluded that there was “no evidence” that Appellant’s enlistment was involuntary. The majority concedes that one of these statements is inaccurate, but dismisses the military judge’s repeated conclusions as no more than “overstat[ing] matters” and negated because “the military judge considered contrary evidence.” But if the military judge considered contrary evidence it is not 14 United States v. Fry, No. 11-0396/MC reflected in the record or in the use of the unambiguous term “all.” Most importantly, there is no indication in the military judge’s ruling that he considered and analyzed the medical testimony and declaration from Dr. Schuck. This was an abuse of discretion in a case that hinged on whether a developmentally disabled recruit had the capacity to voluntarily enlist and/or submit to military authority. In particular, the military judge abused his discretion by failing to address statements by Appellant’s treating psychologist such as: Developmentally, [Appellant] is mentally like a child at the age of 14. . . . Due to his autism and ADHD, Josh fails to weigh the consequences of his actions. His pursuit of gratifying his immediate needs fueled by his impulsivity have resulted in a long history of poor choices that evidence his lack of judgment and reasoning skills necessary to make life decisions. . . . . . . . I have been asked whether in my professional opinion, and based upon my over ten years of clinical evaluation of Josh, do I believe that Josh had the mental capacity to understand the significance of his enlistment in the military. My answer is no.8 8 Neither did the military judge reference or address the investigating officer’s (IO) conclusion that: [i]t is highly questionable whether the Accused had the mental capacity at the time of enlistment to form the specific intent necessary to “deliberately conceal” his mental disorder. Further, there is compelling evidence in mitigation of undue influence, overreaching, and recruiter misconduct, all of which may negate the specific intent required for [a charge of fraudulent enlistment]. 15 United States v. Fry, No. 11-0396/MC In my view, it was not possible for the military judge to reach an informed conclusion about Appellant’s capacity to enlist as well as to voluntarily submit to military authority without first acknowledging, analyzing, and addressing these critical statements. Thus, we cannot know if the military judge reached the right decision regarding jurisdiction, because he did not reach it the right way -- by stating the standard he was applying and then analyzing and weighing all the evidence before the court, including and in particular, the testimony and declaration of Appellant’s long-term treating psychologist in light of that standard. As a result, I would reverse the decision of the lower court and respectfully dissent. While not error in its own right to omit such reference, the IO’s report clearly undercuts the conclusion that all the evidence reflected a capacity to voluntarily enlist. 16 Appendix A

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