## Facts

- Operations Specialist Second Class (OS2) Craig D. Mercier, U.S. Coast Guard, was charged with multiple offenses for trial by general court-martial, including Charge II, Specification 6, alleging he communicated indecent language to “CM,” a civilian woman, in violation of Article 134, UCMJ.
- An Article 32, UCMJ, preliminary hearing was held. As to Specification 6, CM did not testify at the hearing.
- Instead of live testimony from CM, the government presented materials that included a Coast Guard Investigative Service (CGIS) agent’s memorandum summarizing the agent’s interview of CM and a transcript of an electronic messaging exchange attributed to Mercier and CM.
- The preliminary hearing officer (PHO) concluded there was no probable cause to believe Mercier committed Specification 6 and recommended that the convening authority not refer that specification to a general court-martial.
- The staff judge advocate (SJA), in the required Article 34, UCMJ, pre-referral advice to the convening authority, recommended referral of all charges, including Specification 6, despite the PHO’s recommendation.
- In explaining the recommendation, the SJA stated that CM was expected to testify at trial and that her expected testimony supplied probable cause for Specification 6.
- The convening authority referred the charges and specifications, including Specification 6, to a general court-martial.
- At the court-martial, Mercier moved to dismiss Specification 6, arguing the referral was improper because the Article 34 advice relied on evidence not presented at the Article 32 hearing (CM’s expected testimony).
- The military judge granted the motion and dismissed Specification 6 without prejudice, ruling that the Article 34 advice was defective because it relied on expected trial testimony rather than evidence presented at the Article 32 hearing.
- The government filed an interlocutory appeal under Article 62, UCMJ, challenging the dismissal.

## Issues

1. Whether Article 34, UCMJ, limits the SJA’s pre-referral advice on whether a specification is “warranted by the evidence” to the evidence presented at the Article 32 preliminary hearing.
2. Whether the convening authority may properly refer a specification to a general court-martial when the PHO found no probable cause and recommended against referral.
3. Whether the military judge erred by dismissing a specification for “improper referral” based on the SJA’s reliance on anticipated trial testimony not introduced at the Article 32 hearing.

## Decision

- The United States Coast Guard Court of Criminal Appeals granted the government’s Article 62 appeal.
- The court reversed the military judge’s dismissal of Charge II, Specification 6.
- The court held that the Article 34 advice was not defective merely because it referenced CM’s expected trial testimony as a basis for probable cause.
- The court held that the PHO’s probable-cause assessment and recommendation were not binding on the SJA or the convening authority.
- The court reinstated Specification 6 and returned the case for further proceedings.

## Legal Principles

- The Article 32 preliminary hearing is a screening procedure; the PHO’s findings and recommendations, including on probable cause, are not binding on the convening authority.
- Article 34 requires an SJA to advise whether each specification is warranted by the evidence, but it does not restrict the SJA to the evidence presented at the Article 32 hearing.
- In deciding referral and in providing Article 34 advice, the convening authority and SJA may consider credible information beyond the Article 32 record, including anticipated witness testimony at trial.
- A disagreement between the SJA and the PHO about probable cause or disposition does not, by itself, make a referral improper.
- An accused has no due process right to have a PHO’s no-probable-cause determination control the referral decision.

## Conclusion

United States v. Mercier holds that a PHO’s no-probable-cause recommendation at an Article 32 preliminary hearing does not prevent referral, and an SJA’s Article 34 advice may properly rely on information beyond the preliminary-hearing record, including expected trial testimony; therefore, the military judge erred in dismissing the indecent-language specification, and the specification was reinstated.


United States v. Mercier, 75 M.J. 643 (2016)