United States v. Day

    This opinion is subject to revision before publication




     UNITED STATES COURT OF APPEALS
               FOR THE    ARMED FORCES
                     _______________

                   UNITED STATES
                       Appellee

                             v.

       Katelyn L. DAY, Airman First Class
        United States Air Force, Appellant

                      No. 22-0122
                  Crim. App. No. 39962

Argued October 25, 2022—Decided December 13, 2022

  Military Judges: Bryan D. Watson (arraignment),
            Jefferson B. Brown (trial), and
         Andrew R. Norton (post-sentencing)

 For Appellant: Major Matthew L. Blyth (argued);
 Mark C. Bruegger, Esq.

 For Appellee: Major Morgan R. Christie (argued);
 Colonel Naomi P. Dennis, Lieutenant Colonel
 Thomas J. Alford, and Mary Ellen Payne, Esq. (on
 brief); Major Cortland Bobczynski and Major Allison
 R. Gish.

 Judge MAGGS delivered the opinion of the Court, in
 which Chief Judge OHLSON, Judge SPARKS,
 Judge HARDY, and Senior Judge EFFRON joined.
                _______________
              United States v. Day, No. 22-0122/AF
                      Opinion of the Court


   Judge MAGGS delivered the opinion of the Court.
   The sole assigned issue in this appeal is “[w]hether at-
tempted conspiracy . . . is a viable offense under the
UCMJ.” Consistent with our holding in United States v.
Riddle, 

 (C.A.A.F. 1996), we answer this
question in the affirmative. We therefore affirm the judg-
ment of the United States Air Force Court of Criminal Ap-
peals (AFCCA). United States v. Day, No. ACM 39962, 

, at *23-24, 

, at *7 (A.F. Ct.
Crim. App. Jan. 5, 2022) (unpublished).
                         I. Background
    A military judge sitting as a general court-martial
found Appellant guilty, consistent with her pleas, of multi-
ple offenses related to her unsuccessful efforts to kill her
husband, TD. 1 At issue in this appeal are two specifications
of attempted conspiracy to commit premeditated murder.
These specifications are hereinafter referred to as the “JM
Specification” and the “TL Specification.”
   The JM Specification alleged that Appellant, in viola-
tion of Article 80, UCMJ:
       did, within the state of Louisiana, between on or
       about 1 December 2019 and on or about 18 Decem-
       ber 2019, attempt to conspire with [JM] to commit
       an offense under the Uniform Code of Military
       Justice, to wit: premeditated murder of [TD], and
       in order to effect the object of the conspiracy the
       said [Appellant] did purchase, from [JM], a sub-
       stance to be used to kill [TD].


   1  The military judge found Appellant guilty of one specifica-
tion of attempted premeditated murder, two specifications of at-
tempted conspiracy to commit premeditated murder, one speci-
fication of attempted wrongful possession of fentanyl, and two
specifications of solicitation to commit murder, in violation of Ar-
ticles 80 and 82, Uniform Code of Military Justice (UCMJ), 

, 882 (2018). The military judge sentenced Appel-
lant to a dishonorable discharge, confinement for ten years, and
reduction to the grade of E-1. The convening authority took no
action on the findings or the sentence.




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            United States v. Day, No. 22-0122/AF
                    Opinion of the Court


Appellant recounted the facts pertinent to this
specification in a stipulation of fact and during the
providence inquiry by the military judge. In short,
Appellant informed JM that she wanted to kill her husband
to obtain the benefits of a life insurance policy. Appellant
and JM agreed to meet in a Walmart parking lot so that
JM could supply Appellant with a substance for poisoning
her husband. When they met, Appellant paid JM $100, and
JM provided Appellant with a clear plastic bag containing
a white substance that JM said was fentanyl. Appellant did
not know that JM was working as an informant for Air
Force investigators and that the substance JM provided
was not actually fentanyl.
   The TL Specification alleged that Appellant, also in vi-
olation of Article 80, UCMJ:
      did, within the state of Louisiana, between on or
      about 1 November 2019 and on or about 18 De-
      cember 2019, attempt to conspire with [TL] to
      commit an offense under the Uniform Code of Mil-
      itary Justice, to wit: premeditated murder of [TD],
      and in order to effect the object of the conspiracy
      the said [Appellant] did agree to pay some amount
      of money to [TL] for lessons on how to fatally poi-
      son a human with drugs and did purchase a sub-
      stance she believed to be Fentanyl which she in-
      tended [to] use to murder [TD].
Appellant also summarized the facts pertinent to this spec-
ification in a stipulation of fact and during a providence in-
quiry. Stated briefly, Appellant asked TL to teach her how
to poison her husband. TL offered to give her lessons for
the price of $100 per month. Appellant and TL “discussed
payment methods and when they would schedule video
chats and phone calls to carry out the plan.” Ultimately,
however, TL never gave Appellant lessons and Appellant
never paid TL. The military judge found Appellant guilty
of the offense alleged in this specification, except for the
words “and did purchase a substance she believed to be
Fentanyl which she intended [to] use to murder [TD].” Of
these words, the military judge found Appellant not guilty.




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                    Opinion of the Court


   In a pretrial agreement, Appellant agreed to “waive all
motions that are waivable under current legal precedent
and public policy.” In reviewing this provision, the military
judge informed Appellant:
      The plea agreement . . . states that you waive or
      give up all waivable motions. I do advise you that
      certain motions are waived and are given up and
      actually set forth in some specificity in [the agree-
      ment] as well. Some of these could be motions to
      dismiss for lack of jurisdiction or failure to state
      an offense, those could not be waived.
    The military judge then asked defense counsel: “[W]hat
specific motions did you consider raising or do you consider
waived by this provision?” Defense counsel responded: “It
would be the motion for the unanimous verdict, which we
believe is moot based on the plea agreement and her elec-
tion for a military judge.” The military judge then asked
defense counsel: “Is there anything, at least at this stage in
the litigation, other than maybe the unanimous verdict if
[Appellant] had [gone] with members, that you believe that
you are going to waive and that you would otherwise raise
in this case but for this plea agreement?” Defense counsel
answered in the negative.
    The military judge later asked circuit trial counsel:
“[A]re there any additional motions that you believe may
be potentially raised by this case that you believe this
[waiver] provision applies to?” Circuit trial counsel
answered: “Your Honor, the only one . . . is a potential
Article 10 motion due to the pretrial confinement of
[Appellant].” The military judge next asked defense
counsel about this potential motion, and defense counsel
responded: “At this point, it was not something that we
were going to file a motion for.” Neither defense counsel nor
circuit trial counsel mentioned a motion to dismiss for
failure to state an offense.
    After reviewing the rest of the plea agreement, the mil-
itary judge asked: “Do counsel for both sides agree with the
court’s interpretation of the plea agreement?” Circuit trial




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            United States v. Day, No. 22-0122/AF
                    Opinion of the Court


counsel and defense counsel both answered in the affirma-
tive. Appellant did not move to dismiss the attempted con-
spiracy charges for failure to state an offense. Appellant
later pleaded guilty, unconditionally, to each of the specifi-
cations at issue. Before entering findings, the military
judge asked: “Trial Counsel, I am about to enter findings in
this case. Is there anything else you want me to take up?”
Circuit trial counsel responded: “No, Your Honor.”
    On appeal to the AFCCA, Appellant argued that her
pleas of guilty to the two specifications of attempted con-
spiracy were improvident because the specifications failed
to state an offense. Day, 

, at *2, 

, at *1. The AFCCA considered Appellant’s argu-
ment on the merits, relying on its discretionary authority
under Article 66, UCMJ, 

 (2018), to correct
waived legal issues. 

, at *22, 

, at *7 (citing United States v. Hardy, 

,
442-43 (C.A.A.F. 2018)). Following this Court’s decision in
Riddle, the AFCCA concluded that the specifications of at-
tempted conspiracy stated an offense under the UCMJ. Id.
at *21, *23, 

, at *7. We granted review of
this issue.
                         II. Waiver
          A. Standard of Review and Applicable Law
    This Court cannot review waived issues. United States
v. Gladue, 

 (C.A.A.F. 2009). Whether an
appellant has waived an objection is a legal question that
this Court reviews de novo. United States v. Gudmundson,

 (C.A.A.F. 2002). Waiver can occur either
by a party’s intentional relinquishment or abandonment of
a known right or by operation of law. United States v.
Jones, 

, 44 (C.A.A.F. 2018). A waiver by opera-
tion of law happens when a procedural rule or precedent
provides that an objection is automatically waived upon
the occurrence of a certain event and that event has oc-
curred. See, e.g., United States v. Swift, 

, 217-
18 (C.A.A.F. 2017) (holding that a motion to suppress a con-
fession should have been made before arraignment under




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Rule for Courts-Martial (R.C.M.) 905(b)(3) and that the
failure to raise the issue permanently waived it under the
language of the first two sentences of R.C.M. 905(e)).
                         B. Discussion
    The Government contends that we cannot review Ap-
pellant’s argument that “attempted conspiracy” is not an
offense under the UCMJ because Appellant waived this is-
sue, both by agreeing to waive all waivable motions and by
making an unconditional guilty plea. Appellant responds
that her objection to the specifications was not waived be-
cause the military judge told her that failure to state an
offense is not a waivable issue. This Court agrees with Ap-
pellant’s argument and holds that her present argument
was not waived.
    We agree with the Government that an accused may in-
tentionally relinquish a waivable objection in a plea agree-
ment by including a clause waiving all waivable motions.
See, e.g., United States v. Danylo, 

(C.A.A.F. 2014) (holding that such a clause in a pretrial
agreement waived a claim for sentencing credit). We also
agree with the Government that a waiver by operation of
law may result from an unconditional guilty plea. We have
held that “[a]n unconditional guilty plea generally ‘waives
all defects which are neither jurisdictional nor a depriva-
tion of due process of law.’ ” United States v. Schweitzer, 

 (C.A.A.F. 2009) (quoting United States v. Re-
horn, 

, 

 (1958)).
But in this case, we think the military judge’s advice to Ap-
pellant prevented the possibility of waiver. 2


   2  We do not address the question of whether failure to state
an offense is a waivable objection. This Court previously stated
failure to state an offense was not waived by a guilty plea.
Schweitzer, 

. The President later amended R.C.M.
907(b)(2)(E) to include failure to state an offense in a list of
waivable objections. We see no need to address the question
because of our conclusion that the objection was not waived in
this case. See United States v. Sanchez, 

, 503-04 (A.
Ct. Crim. App. 2021) (addressing this issue).




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             United States v. Day, No. 22-0122/AF
                     Opinion of the Court


    The closest precedent on the waiver issue is United
States v. Stewart, 

, 

 (1971). In
Stewart, this Court held that the Appellant’s guilty plea did
not waive appellate review of his argument that he was not
guilty of disobedience to orders because the Secretary of the
Army improperly denied his request to be recognized as a
conscientious objector. 

, 

.
Although this Court recognized that a guilty plea
ordinarily would waive such a claim, the Court declined to
hold that the guilty plea waived the issue because “some of
the law officer’s comments supported an erroneous
impression . . . that . . . a guilty plea in this instance would
not waive his claim that the discharge application had been
arbitrarily and unreasonably denied.” 

. The same principle applies in the present case.
Because the military judge unambiguously advised
Appellant that a motion to dismiss for failure to state an
offense is not waivable, we conclude that neither
Appellant’s guilty plea nor the plea agreement prevents
Appellant from raising the issue in this appeal.
    The present case is distinguishable from United States
v. Bradley, 

 (C.A.A.F. 2010), a decision in which
this Court declined to follow Stewart. In Bradley, this
Court held that an accused may plead guilty and still pre-
serve a waivable issue only by entering a conditional guilty
plea in accordance with R.C.M. 910(a)(2). 

. But
Bradley differs from both Stewart and this case because the
military judge in Bradley did not provide the accused with
clearly contrary advice. See 

 (disagreeing with the lower
court’s determination that the military judge’s “ ‘ambigu-
ous advisement’ ” precluded waiver); see also United States
v. Dusenberry, 

, 

, 540
(1975) (distinguishing Stewart on the grounds that there
was “nothing in the comments of either the appellant’s
counsel or the military judge that indicates an erroneous
belief that [the matters at issue] would be preserved” fol-
lowing a guilty plea).
   The Government asserts that we should reject Appel-
lant’s position on waiver because Appellant cannot show




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that the military judge’s advice induced her guilty plea. In
assessing this argument, we recognize that in Stewart,
comments by defense counsel showed that the appellant
was “obvious[ly]” relying on the law officer’s advice. 

, 

. In the present case, the
facts are somewhat different, but we do not think this dif-
ference changes the result. As recounted above, the mili-
tary judge sua sponte advised Appellant that a motion to
dismiss for failing to state a claim was not waivable. Trial
counsel did not object to this advice. The military judge
then asked each party to identify the motions that they
thought were waived, and neither cited a motion to dismiss
for failing to state a claim in their answers. The military
judge followed up by asking counsel if they agreed with his
interpretation of the plea agreement, and they both said
that they did. And when the military judge finally asked
trial counsel if there was anything else to take up, trial
counsel answered in the negative. We think this is enough
to make this case more like Stewart than Bradley. In such
circumstances, we can reach no other conclusion than that
Appellant accepted the military judge’s advice that the
clause waiving all waivable motions would not waive a mo-
tion to dismiss for failing to state an offense, and that both
Appellant and the Government proceeded on that basis.
   Finally, the Government contends that the military
judge’s advice should not affect the meaning of the clause
waiving all waivable motions because Appellant had
already signed the plea agreement. We find this argument
unpersuasive. R.C.M. 910(f)(4)(A) requires the military
judge to determine whether the accused understands and
agrees with the plea agreement before the plea and plea
agreement are accepted. If there is any disagreement about
the meaning or effect of the plea agreement, then R.C.M.
910(f)(4)(B)(ii) allows the accused to withdraw. The
Government’s view would undermine these procedures and
the rights they afford. If the Government’s position were
correct, the military judge’s inquiry into the plea
agreement, and the parties’ representations to the military
judge about their understanding of the agreement, would




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                    Opinion of the Court


have no consequence.        Accordingly,    we     reject   the
Government’s argument.
       III. Attempted Conspiracy Under the UCMJ
          A. Standard of Review and Applicable Law
    Although Appellant did not waive her argument that
the JM Specification and the TL Specification do not state
offenses under the UCMJ, she nonetheless forfeited this ar-
gument by failing to raise it before the military judge.
United States v. Tunstall, 

 (C.A.A.F. 2013).
Because Appellant forfeited the argument, we can review
it only for plain error. 

 “To establish plain error, an ap-
pellant has the burden to demonstrate: (1) there was error;
(2) the error was [clear] or obvious; and (3) the error mate-
rially prejudiced a substantial right of the accused.” 

 In
this case, we conclude that there was no error, and there-
fore no plain error.
    Article 80(b), UCMJ, establishes the offense of “At-
tempts” by providing: “Any person subject to this chapter
who attempts to commit any offense punishable by this
chapter shall be punished as a court-martial may direct,
unless otherwise specifically prescribed.” Article 80(a),
UCMJ, defines “attempt” by providing: “(a) An act, done
with specific intent to commit an offense under this chap-
ter, amounting to more than mere preparation and tend-
ing, even though failing, to effect its commission, is an at-
tempt to commit that offense.” Article 81(a), UCMJ, 10
U.S.C. 881(a) (2018) establishes the offense of conspiracy,
by providing: “Any person subject to this chapter who con-
spires with any other person to commit an offense under
this chapter shall, if one or more of the conspirators does
an act to effect the object of the conspiracy, be punished as
a court-martial may direct.”
    This Court previously held in Riddle that attempted
conspiracy is an offense under the UCMJ. 

.
In Riddle, the accused was charged with conspiring to steal
military pay. 

. The government’s theory was that
the appellant and a woman falsely altered a marriage cer-
tificate to make it appear that they were married and thus




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                    Opinion of the Court


due entitlements received by married servicemembers. 

But at trial, the appellant produced evidence that he and
the woman were married according to an applicable state
law which recognized common law marriage. 

 The mili-
tary judge found the appellant not guilty of conspiracy but
found him guilty of attempted conspiracy. 

.
    In Riddle, this Court acknowledged that other federal
jurisdictions do not recognize the offense of attempted con-
spiracy. 

 But the Court held that attempted conspiracy
was an offense under the UCMJ, stating three grounds for
this conclusion. 

. First, the Court observed that
“the language of [Article 80, UCMJ] is broad and makes no
distinction between a conspiracy or other inchoate offense
and any other type of military offense as the lawful subject
of an attempt offense.” 

 Second, the Court stated that
“no other statute or case law from this Court precludes ap-
plication of Article 80 to a conspiracy offense as prohibited
in Article 81, UCMJ.” 

 Third, the Court explained that
“an attempt under Article 80 is particularly appropriate
where there is no general solicitation statute in the juris-
diction or a conspiracy statute embodying the unilateral
theory of conspiracy.” 

                        B. Discussion
   Despite this Court’s holding in Riddle that attempted
conspiracy is an offense under the UCMJ, Appellant argues
that this Court should not follow the Riddle precedent for
four reasons. First, Appellant observes that Congress
amended Article 82, UCMJ, in 2016. 3 This amendment cre-
ated a general solicitation statute from a specific solicita-
tion statute which previously only prohibited solicitation to
commit desertion, misbehavior before the enemy, and sedi-
tion. Compare Article 82, UCMJ, 

 (2012),
with Article 82(a), UCMJ, 

(a) (2018). Appel-
lant asserts that a general solicitation statute undercuts
the third rationale of Riddle: attempted conspiracy was

   3 See National Defense Authorization Act for Fiscal Year
2017, 

, 

, 2939-40
(2016).




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                    Opinion of the Court


“particularly appropriate” in a jurisdiction that does not
have a general solicitation statute. 

. This ar-
gument is not persuasive. Although Congress changed the
wording of Article 82, UCMJ, Congress did not change the
wording of Articles 80 and 81, UCMJ. In our view, what
this Court said about the text of those articles in Riddle
still is true. The language of Article 80, UCMJ, “makes no
distinction between a conspiracy . . . and any other type of
military offense” and no “statute or case law from this
Court precludes application of Article 80 to a conspiracy of-
fense as prohibited in Article 81, UCMJ.” 

.
Although in Riddle this Court saw the offense of attempted
conspiracy as being “particularly appropriate” given the
lack of a general solicitation offense, 

 this statement
was an observation about military justice policy. Even if
the policy argument for making attempted conspiracy a
criminal offense is not as strong as it once was, revising
Article 80, UCMJ, is a matter for Congress—not this
Court—to consider.
    Second, Appellant argues that this Court should not fol-
low Riddle because federal civilian practice does not recog-
nize the offense of attempted conspiracy. We also find this
argument unpersuasive. This Court already recognized in
Riddle that “most [federal] courts have rejected attempted
conspiracy as a crime” and that some sources had described
an attempted conspiracy as “a creature unknown to federal
criminal law.” 

 (citations omitted) (internal
quotation marks omitted). But, as the Court emphasized in
Riddle, federal law contains no equivalent provision to Ar-
ticle 80, UCMJ. 

. The same is true today.
   Third, Appellant argues that the offense of attempted
conspiracy is unnecessary because in most cases, a person
charged with attempted conspiracy could alternatively be
charged with solicitation. While this argument may be
true, it is also unpersuasive for the same reason mentioned
before: the decision whether to eliminate an offense is a
question for congressional, not judicial, decision.




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                    Opinion of the Court


    Fourth, Appellant argues that in many instances, at-
tempted conspiracy is a “nonsensical” offense. This conten-
tion is at best an overgeneralization. We would character-
ize neither the attempted conspiracy specification in
Riddle nor the two attempted conspiracy specifications in
this case as being nonsense. We see no significant dispute
about the elements of these attempted conspiracy specifi-
cations. Nor do we see confusion about the distinction be-
tween these offenses and actual conspiracies. In Riddle, the
evidence that appellant and another were married may
have prevented them from being guilty of an actual con-
spiracy under the language of Article 81, UCMJ, but not an
attempted conspiracy under the language of Article 80,
UCMJ. 

. In this case, the evidence that JM
was working for the Government as an informer prevented
Appellant from being guilty of an actual conspiracy, but not
an attempted conspiracy. Likewise, although the evidence
that Appellant and TL failed to find a mutually convenient
time to meet may have prevented them from being guilty
of an actual conspiracy, it did not prevent Appellant from
being guilty of an attempted conspiracy.
                      IV. Conclusion
   The decision of the United States Air Force Court of
Criminal Appeals is affirmed.




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