I DAVID M. HICKS, Appellant, UNITED STATES OF AMERICA, Appellee. IN THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW BRIEF OF THE UNITED STATES ON THE ISSUE SPECIFIED BY THE COURT IN ITS NOVEMBER 20, 2014 ORDER U.S.C.M.C.R. Case No. 13?004 Tried at Guantanamo Bay, Cuba on 26 and 30 March 2007 before a Military Commission convened by Hon. Susan J. Crawford Presiding Military Judge Colonel Ralph H. Kohlmann, USMC TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW January 16,2015 MARK S. MARTINS Brigadier General, US. Army Chief Prosecutor DANIELLE S. TARIN Appellate Counsel Of?ce of the Chief Prosecutor Of?ce of Military Commissions 1610 Defense Pentagon Washington, DC. 20301-1610 danielle.s.tarin.civ@mail.mil (703) 275-9034 Counsel for the United States TABLE OF CONTENTS TABLE OF AUTHORITIES .. ii ARGUMENT .. 1 I. THE COURT SHOULD DISMISS THIS CASE .. 1 A. The Court Should Dismiss the Case Because the Court Lacks Subject-Matter Jurisdiction .. 1 B. In the Alternative, the Court Should Dismiss the Case Because Appellee Is Entitled to Speci?c Performance of Hicks?s Promise To Waive Appeal .. 3 II. IF THE COURT FIRST CONCLUDES IT HAS JURISDICTION AND DENIES APPELLEE SPECIFIC PERFORMANCE, THEN THE COURT MAY REVIEW THE MERITS OF THE CASE AND SHOULD DECLINE TO AF FIRM MATERIAL-SUPPORT CONVICTION UNDER UNITED STATES V. BAHLUL .. 5 CONCLUSION .. 6 TABLE OF AUTHORITIES Page CASES Bousley v. United States, 523 US. 614 (1998) .. 2, 3 Davis v. United States, 417 US. 333 (1974) .. 3 Ex parte McCardle, 74 US. (7 Wall.) 506 (1869) .. 2 Fiore v. White, 531 US. 225 (2001) .. 3 Great S. Fire ProofHotel Co. v. Jones, 177 US. 449 (1900) .. 2 Mans?eld, C. L.M.R. Co. v. Swan, 111 US. 379 (1884) .. 2 Steel Co. v. Citizens for a Better Env 523 US. 83 (1998) .. 2 United States v. Bahlul, 767 F.3d 1 (DC. Cir. 2014) .. 1, 2, 5 United States v. Erwin, 765 F.3d 219 (3d Cir. 2014) .. 4, 5 United States v. Fisher, 711 F.3d 460 (4th Cir. 2013) .. 2, 3 STATUTES AND RULES 10 U.S.C. 950v(b)(25) (2006) .. 1, 5 10 U.S.C. 9500(d) (2009) .. 1, 2, 3 10 U.S.C. 950f (2009) .. 1, 3 10 U.S.C. 950f(d) (2009) .. 1 OTHER MATERIALS Appellee Brief on the Court?s Lack of Authority To Hear This Case (Dec. 19, 2013) .. 1, 2, 3, 4 Appellee Answer on the Court?s Lack of Authority To Hear This Case (Jan. 10, 1, 2, 3, 4 Response to Appellant?s Motion To Lift Stay (Aug. 25, 2014) .. 1, 2, 3 Hicks?s Response to the Court?s November 20, 2014 Order (Dec. 19, 2014) .. 1, 2 ii ARGUMENT On November 20, 2014, the Court issued an Order specifying the following issue: ?Applying the 10 U.S.C. 950f(d) (2009) standard of review, should our Court af?rm Appellant?s ?nding of guilty of providing material support to terrorism, in violation of 10 U.S.C. 950v(b)(25) (2006), in light of United States v. Bahlul, 767 F.3d 1 (DC. Cir. 2014)?? Order on Speci?ed Issue (Nov. 20, 2014). In accordance with that Order, Appellee United States timely ?les this Brief maintaining that the Court should dismiss the case by holding it lacks subject-matter jurisdiction or, in the alternative, enforcing speci?c performance of Appellant David Hicks?s promise to waive appeal in the Pretrial Agreement. Appellee Br. on the Ct.?s Lack of Authority To Hear This Case 12-35 (Dec. 19, 2013) (?Dec. 19 Appellee Appellee Answer on the Ct.?s Lack of Authority To Hear This Case 2-9 (Jan. 10, 2014) (?Jan 10 Appellee Only if the Court declines to dismiss the action and proceeds to review the merits may it reach the Speci?ed Issue. If the Comt so reaches the Speci?ed Issue, then the Court should decline to affirm Hicks?s material-support conviction in light of Bahlul. I. THE COURT SHOULD DISMISS THIS CASE A. The Court Should Dismiss the Case Because the Court Lacks Subject-Matter Jurisdiction Hicks incorrectly asserts that the Court may side-step ?the waiver issue? and proceed directly to reviewing his conviction. See Hicks?s Resp. to Ct.?s Nov. 20, 2014 Order 2. Before the Court can consider the Speci?ed Issue, it must ?rst determine whether Hicks waived appellate review. The Court must do so because, under 10 U.S.C. 950c(d) (2009), his waiver constitutes a jurisdictional bar prohibiting the Court from reviewing all the claims he raises on appeal?including his principal claim that the Military Commission lacked subject-matter jurisdiction to try him. Compare Hicks?s Resp. to Ct.?s Nov. 20, 2014 Order 3-4, with 10 U.S.C. 9500(d) waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 950f of this title?); Dec. 19 Appellee Br. 12-33; Jan. 10 Appellee Br. 2-9; Resp. to Appellant?s Mot. To Lift Stay 2 (Aug. 25, 2014). As the US Court of Appeals for the District of Columbia Circuit has held in Bahlul, the ex post facto argument upon which Hicks principally relies is a constitutional?not jurisdictional?one that is forfeitable (and, by extension, waivable). See Resp. to Appellant?s Mot. To Lift Stay 2 (citing Bahlul, 767 F.3d at 10 Having waived appeal, Hicks has intentionally relinquished all the arguments he now seeks to raise on appeal. His waiver forecloses this Court?s review. ??On every writ of error or appeal, the ?rst and fundamental question is that of jurisdiction, ?rst, of this court, and then of the court from which the record comes.? Steel Co. v. Citizens for a Better Env?t, 523 U.S. 83, 94 (1998) (emphasis added) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Contrary to Hicks?s argument (reiterated at 3), the Court must ?rst conclude it has jurisdiction before it can consider whether his conviction is valid, even where the basis for the purported invalidity was that the court below lacked jurisdiction to try him. ?The requirement that jurisdiction be established as a threshold matter ?spring[s] from the nature and limits of the judicial power of the United States? and is ?in?exible and without exception.? Id. at 94-95 (alteration in original) (emphasis added) (quoting Mans?eld, C. LMR. Co. v. Swan, 11] U.S. 379, 382 (1884)). ?Withoutjurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.? Ex parte McCardIe, 74 U.S. (7 Wall.) 506, 514 (1869). Because the Court lacks the power to review his claims and set aside his conviction, it may do no more than dismiss this case. See Dec. 19 Appellee Br. 12?33; Jan. 10 Appellee Br. 2-10. Citing Bousley v. United States, 523 U.S. 614 (1998), and United States v. Fisher, 711 .3d 460 (4th Cir. 2013), Hicks argues that even if he had waived appellate review, the Court would still have the ?power to void the plea agreement and set aside his guilty plea (including any waiver) because it was not knowing and voluntary.? See Hicks?s Resp. to Ct.?s Nov. 20, 2014 Order 2. Hicks is incorrect because under 10 U.S.C. 950c(d), the waiver constitutes a jurisdictional bar prohibiting the Court from reviewing his case. See Dec. 19 Appellee Br. 12- 16; Jan. 10 Appellee Br. 2-9. Neither Bousley nor Fisher?nor any other case Hicks cites? 2 supports the proposition that a court lacking jurisdiction may review, much less set aside, a conviction. The authorities cited by Hicks also fail to support his proposition (at 3) that a court may bypass the jurisdictional question by invoking ?due process? or to prevent a ?miscarriage of justice.? Rather, in those cases, the courts hadjurisdiction to review the defendants? convictions. See Bousley, 523 US. at 623 (remanding the case for a determination on whether the petitioner- appellant was actually innocent); Fisher, 711 F.3d at 464 (noting 28 U.S.C. 2255 authorizes that court to review the guilty plea); see also Fiore v. White, 531 US. 225 (2001); Davis v. United States, 417 US. 333 (1974). This Court does not. Appellee maintains that the Court does not have subject-matter jurisdiction to hear this case because Hicks has validly waived his right to appellate review under 10 U.S.C. 950c(d) and because the Convening Authority has not referred the case for appeal or forwarded the record to the Court for review under 10 U.S.C. 950f. Dec. 19 Appellee Br. 12-29; Jan. 10 Appellee Br. 2-15; see also Resp. to Appellant?s Mot. To Lift Stay 2-9. To the extent Hicks reprises his arguments that he did not waive his right to appellate review and that his waiver is invalid (at 2-4), the Court should deny those arguments for the reasons detailed by Appellee in its Briefs on the Court?s lack of authority to hear this case. Dec. 19 Appellee Br. 12-29; Jan. 10 Appellee Br. 2-15; see also Resp. to Appellant?s Mot. To Lift Stay 2-9. Because the Court lacks subject-matter jurisdiction, it lacks authority to consider the Speci?ed Issue and should dismiss the case. B. In the Alternative, the Court Should Dismiss the Case Because Appellee Is Entitled to Speci?c Performance of Hicks?s Promise To Waive Appeal Appellee further maintains that even if the Court concludes Hicks failed to validly waive appeal and the Court has jurisdiction, it should still dismiss the case because Appellee is entitled to speci?c performance of Hicks?s promise to validly waive appeal in his Pretrial Agreement with the Convening Authority. Dec. 19 Appellee Br. 29-33. In the Pretrial Agreement, Hicks negotiated a particular plea to avoid serving a sentence greater than he would otherwise serve and to secure the Convening Authority?s support for his transfer to Australia to serve the majority of his sentence. Dec. 19 Appellee Br. 29-33; Jan. 10 Appellee Br. 13?14. The parties? clear and unambiguous intent was that Hicks would validly waive his right to appeal as part of the bargained-for exchange in the Pretrial Agreement. Dec. 19 Appellee Br. 29?33; Jan. 10 Appellee Br. 13-14. The Convening Authority relied to her detriment on Hicks?s promises, performing all her obligations under the Pretrial Agreement, while Hicks did not. Dec. 19 Appellee Br. 29-33; Jan. 10 Appellee Br. 13-14. The Court must consider whether Appellee is entitled to speci?c performance for Hicks?s material breach of the Pretrial Agreement before considering the Speci?ed Issue because, as Appellee previously demonstrated, dismissal is the only adequate remedy available now that Hicks is seeking to bene?t from his own breach while outside US. custody. Dec. 19 Appellee Br. 29-33; Jan. 10 Appellee Br. 13-14. A recent decision by the United States Court of Appeals for the Third Circuit supports enforcing the waiver here. United States v. Erwin, 765 F.3d 219 (3d Cir. 2014).1 Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone pursuant to a pretrial agreement in which he agreed to waive appeal. According to the court, his ?plea agreement constituted a classic bargained-for exchange.? Id. at 230. Erwin agreed to plead guilty and to assist the Government in obtaining guilty pleas from his codefendants, conserving Government resources that would otherwise have been expended on his prosecution and those of his coconspirators. To ensure that prosecutorial resources would not be expended on him in the ?lture, Erwin relinquished his right to appeal most aspects of his sentence. In return, the Government promised not to initiate additional criminal charges against Erwin for his role in the conspiracy, and it agreed to seek a [substantial- assistance downward] departure [at sentencing] if Erwin cooperated. Erwin received the full bene?t of his bargain because the court accepted his guilty plea (resulting in the speedy disposition of his case) and granted the Government?s request for a downward departure (yielding a sentence more than four years below the statutory maximum). Id. Unlike Erwin, who fully benefitted from the plea agreement, the Government devoted valuable resources to litigating an appeal that should never have been ?led in the ?rst place. ?Empty promises are worthless promises; if defendants could retract their waivers . . . then they could not obtain concessions by promising not to appeal. 1 This decision was published after Appellee ?led its Briefs on the Court?s lack of authority to hear this case on December 19, 2013 and January 10, 2014. 4 Although any given defendant would like to obtain the concession and exercise the right as well, prosecutors cannot be fooled in the long run.? United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). Erwin is no exception. He purposely exchanged the right to appeal for items that were, to him, of equal or greater value. Having reaped the bene?ts of his plea agreement, he cannot avoid its principal detriment?to put it colloquially, he cannot ?have his cake and eat it too.? Id at 282. Under basic principles of contract law, ?[d]efendants must take the bitter with the sweet.? Id. at 283; see also United States v. Cianci, 154 F.3d 106, 110 (3d Cir. 1998) (?Under the law of this circuit, [a defendant] cannot renege on his agreement?). Id. at 231 (alterations in original). Concluding Erwin breached the pretrial agreement by appealing his sentence and depriving the government the bene?t of its bargain, the Third Circuit granted the government Speci?c performance. Id. at 231-32 (remanding the case for resentencing where the government was excused ?om its obligation to move for the downward departure). This Court should likewise grant Appellee speci?c performance here and dismiss the case where Hicks, like Erwin, received the full bene?t of his bargain and, in appealing his conviction, breached the Pretrial Agreement and deprived Appellee of the bene?t of its bargain. II. IF THE COURT FIRST CONCLUDES IT HAS JURISDICTION AND DENIES APPELLEE SPECIFIC PERFORMANCE, THEN THE COURT MAY REVIEW THE MERITS OF THE CASE AND SHOULD DECLINE TO AFFIRM MATERIAL-SUPPORT CONVICTION UNDER UNITED STA ES V. BAHLUL Only if the Court ?rst concludes it has jurisdiction to review the conviction and denies Appellee speci?c performance may the Court reach the merits of this case and consider the Speci?ed Issue. If the Court so reaches the merits, then it should decline to af?rm Hicks?s material-support conviction under Bahlul. In Bahlul, the DC. Circuit?assuming without deciding that the Ex Post Facto Clause applies at Guantanamo Bay, Cuba?concluded ?it was a plain ex post facto violation? to try Ali Hamza Ahmad Suliman Al Bahlul by military commission for providing material support to terrorism, in violation of 10 U.S.C. 950v(b)(25) (2006), for conduct he committed before the Military Commissions Act of 2006 (?2006 was enacted. Bahlul, 767 F.3d at 29. The DC. Circuit further concluded the error was prejudicial and exercised its discretion to correct the error by vacating Bahlul?s material-support conviction. Id. Because Hicks was also tried by military commission for violating Section 950v(b)(25) of the 2006 M.C.A. for conduct he too committed before the statute was enacted, the 5 Court should decline to af?rrn Hicks?s material-support conviction under BahZuI?but only if the Court ?rst concludes it has jurisdiction to review the conviction and denies Appellee speci?c performance. CONCLUSION The Court should dismiss the case for lack of subject-matter jurisdiction. In the alternative, the Court should enforce speci?c performance of Hicks?s promise to waive appeal and dismiss the action. If the Court nonetheless concludes it has jurisdiction over the action and denies Appellee speci?c performance, then the Court should decline to af?rm Hicks?s material- support conviction under Bahlul. Dated: January 16, 2015 ReSpectfully submitted, MARK S. MARTINS Brigadier General, US. Army Chief Prosecutor DANIELLE S. TARIN Danielle S. Tarin Appellate Counsel Counsel for the United States Of?ce of the Chief Prosecutor Of?ce of Military Commissions 1610 Defense Pentagon Washington, DC. 20301-1610 danielle.s.tarin.civ@mail.mil (703) 275-9034 CERTIFICATE OF COMPLIANCE WITH RULE MG) 1. This Brief complies with the type-volume limitation of Rule 14(i) because it contains 2,140 words. 2. This Brief complies with the typeface and type style requirements of Rule 14(e) because it has been prepared in a monospaced typeface using Microsoft Word Version 2010 with 12 characters per inch and Time New Roman font. Dated: January 16, 2015 DANIELLE S. TARIN ls/ Danielle S. Tarin Counsel for the United States Of?ce of the Chief Prosecutor Of?ce of Military Commissions 1610 Defense Pentagon Washington, DC. 20301 -1 61 0 danielle.s.tarin.civ@rnail.mil (703) 275-9034 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was sent by electronic mail to counsel for David Hicks?J. Wells Dixon, Baher Azmy, Shayana Kadidal, Joseph Margulies, Samuel Morison, and Justin Swick?on this 16th day of January 2015. DANIELLE S. TARIN Danielle S. Tarin Counsel for the United States Of?ce of the Chief Prosecutor Of?ce of Military Commissions 1610 Defense Pentagon Washington, DC. 20301-1610 danielle.s.tarin.civ@mail.mil (703) 275-9034