The Army Court of Criminal Appeals recently decided the case of United States v. Burch. Warrant Officer Burch was originally charged with four specifications of sexual assault. His counsel entered negotiations with the Government to resolve the case with a plea agreement. Throughout the negotiations, the defense counsel made clear that Warrant Officer Burch would not agree to plead guilty to any offense which would cause him to suffer the consequences of the Lautenberg Amendment. The Lautenberg Amendment prevents those convicted of misdemeanor domestic assaults from possessing firearms and the alleged victim in this case was the warrant officer’s spouse. The warrant officer was an avid hunter and wanted to retain his ability to possess firearms for that purpose.
The parties eventually negotiated an agreement in which Warrant Officer Burch would plead guilty to a single specification of assault consummated by a battery. The defense counsel believed that because the offense itself did not reference domestic violence, that with a careful drafting of the stipulation of fact and care during the guilty plea inquiry, Warrant Officer Burch would not be subject to the Lautenberg Amendment. The prosecutor did not share this belief, and although he knew that it was of great importance to the warrant officer, he did not tell the defense counsel that the Lautenberg Amendment would still apply.
At trial, the military judge discussed the offense to which the warrant officer was pleading guilty with both attorneys before they went on the record. They established again that Warrant Officer Burch was not pleading guilty to a domestic violence offense, although they did not directly discuss the Lautenberg Amendment. The military judge did not raise the Lautenberg Amendment with the warrant officer during his guilty plea.
Following trial, the prosecutor prepared the Statement of Trial Results. The form includes a question as to whether a crime of domestic violence has been committed, in order to determine the applicability of the Lautenberg Amendment. The prosecutor checked the box that answered “Yes.” The prosecutor sent this form to the military judge but did not include the defense counsel on the email. The military judge signed the form. Again, the defense counsel was not given a copy. A month later, the defense counsel inquired as to the Statement of Trial Results and was finally provided with the form. When he saw the answer to the question regarding domestic violence, he objected to the prosecutor checking the “Yes” box. The military judge stated that she would not rule based upon emails, but required a written motion. A week later, the prosecutor informed the military judge that the convening authority had taken no action on the case. He did not notify the defense counsel. The next day, the military judge signed the Entry of Judgment. The defense counsel submitted his motion regarding the Statement of Trial Results on the same day. The military judge declared the matter now out of her hands since the Entry of Judgment had been signed. She authenticated the record shortly thereafter.
On appeal, the Army appellate court first determined that the Lautenberg Amendment indeed did apply to Warrant Officer Burch’s case. It met the three requirements of the Amendment: 1) a misdemeanor conviction; 2) an offense which includes as an element the use or attempted use of force; and 3) an offense committed by the spouse, former spouse, parent, or guardian of the victim, person with whom the victim shares a child, or person with a current or former dating relationship with the victim. Even without the offense specifying the domestic relationship, the facts of Warrant Officer Burch’s offense met all three requirements.
Next, the court looked at two issues–first, should Warrant Officer Burch’s guilty plea be set aside because of his misunderstanding of whether the Lautenberg Amendment would apply?; and second, was the military judge really unable to do anything about this misunderstanding before she authenticated the record? The Army court found that the guilty plea was based upon a misunderstanding about the Lautenberg–one that the prosecutor was aware of but did not attempt to resolve before the plea was entered. The court also found that the prosecutor and military judge made several errors post-trial as well. They did not ensure that the defense counsel saw the Statement of Trial Results before the military judge signed it or that he knew of the convening authority’s decision before the military judge signed the Entry of Judgment. The military judge also erred when she signed the Entry of Judgment without convening a hearing on the issue the defense counsel had raised. Finally, the court found that the military judge had the authority to hold such a hearing at any time before she authenticated the record of trial. Had she done so and resolve the matter at that time, it would have saved all parties a great deal of time and effort in the long run. The Army Court of Criminal Appeals set aside the guilty plea and returned the case to the convening authority to hold a rehearing.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.