United States v. Mercier
75 M.J. 643, 2016 CCA LEXIS 184, 2016 WL 1085395 (2016)
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Rule of Law:
Under the Uniform Code of Military Justice, a charge cannot be referred to a general court-martial unless the government presents at least some evidence supporting it at the Article 32 preliminary hearing. A Staff Judge Advocate's advice to refer a charge is defective if it is based on evidence, such as expected testimony, that was not presented at the preliminary hearing and is therefore not in the Preliminary Hearing Officer's report.
Facts:
- The accused was charged with communicating indecent language to a civilian woman, CM, in six specifications.
- Specification 6 of Charge II alleged the accused made four specific indecent statements to CM between August 2011 and December 2013.
- At a preliminary hearing, the government presented an investigator's summary of an interview with CM and a transcript of an electronic messenger conversation.
- This evidence did not contain any language supporting two of the four indecent statements alleged in Specification 6.
- The Preliminary Hearing Officer (PHO) concluded the other two statements were better captured by a different specification (Specification 7).
- A Staff Judge Advocate (SJA) disagreed with the PHO's finding and recommended referring Specification 6 to a general court-martial.
- The SJA's recommendation stated that Specification 6 was supported by the "expected testimony of Ms. C.M.," which had not been presented at the preliminary hearing.
Procedural Posture:
- A preliminary hearing under Article 32, UCMJ, was held on September 11, 2015.
- The Preliminary Hearing Officer issued a report on September 21, 2015, finding no probable cause for Specification 6 of Charge II and recommending it not be referred.
- The Staff Judge Advocate, in his Article 34 advice on October 9, 2015, disagreed and recommended referral of Specification 6.
- The convening authority referred all charges, including Specification 6, to a general court-martial on October 14, 2015.
- The defense filed a motion in the trial court to dismiss Specification 6 of Charge II on November 25, 2015.
- The Military Judge (trial court judge) granted the defense's motion on January 5, 2016, dismissing Specification 6 without prejudice.
- The Government (appellant) filed a notice of appeal of the military judge's order with the U.S. Coast Guard Court of Criminal Appeals.
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Issue:
Is a charge improperly referred to a general court-martial when the Staff Judge Advocate's advice recommending referral is based on expected testimony that was not presented at the Article 32 preliminary hearing?
Opinions:
Majority - Judge
Yes. A charge is improperly referred to a general court-martial if the recommendation for referral is based on evidence not contained in the Preliminary Hearing Officer's (PHO) report. The court held that the referral of Specification 6 was improper for two main reasons. First, the preliminary hearing failed to substantially comply with Article 32 and R.C.M. 405 because the government presented no evidence regarding two of the alleged statements, meaning the hearing could not fulfill its purpose of determining probable cause for that part of the specification. Second, under Article 34(a), a Staff Judge Advocate (SJA) must advise that a specification is 'warranted by the evidence indicated in' the PHO’s report. Here, the SJA's advice relied on the 'expected testimony' of a witness, which was not presented at the hearing and thus was not in the report, rendering the advice defective. Because the referral was improper, the military judge did not abuse her discretion in dismissing the specification without prejudice, particularly since the government did not request a continuance to correct the procedural defects.
Analysis:
This decision reinforces the mandatory nature and screening function of the Article 32 preliminary hearing in the military justice system. It clarifies that 'substantial compliance' requires the government to present at least some evidence for every specification, preventing prosecutors from proceeding on charges for which no evidence has been tested at the preliminary stage. The ruling establishes that the SJA's review under Article 34 is limited to the evidence of record from the preliminary hearing, thereby prohibiting the SJA from 'curing' evidentiary deficiencies by referencing anticipated future testimony. This precedent strengthens procedural protections for the accused by ensuring charges are vetted based on presented evidence before they can proceed to a general court-martial.
