2013 (September Term)
United States v. Moss, 73 M.J. 64 (the decision whether to take an appeal to an appellate court is personal to an appellant).
2011 (September Term)
United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside).
(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision).
(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).
2009 (September Term)
United States v. Lloyd, 69 M.J. 95 (there is a general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances).
United States v. Morton, 69 M.J. 12 (affirming a guilty plea based on admissions to an offense to which an accused had not in fact pleaded guilty and which was not a lesser included offense of the charged offense was inconsistent with traditional due process notions of fair notice).
(in light of the abiding principle of fair notice to an accused in the context of guilty pleas and an accused’s right to understand to what he is pleading guilty and on what basis, the closely-related-offense doctrine, allowing an appellate court to uphold a conviction when the providence inquiry clearly establishes guilt of an offense different from but closely related to the crime to which the accused has pleaded guilty, is no longer viable, overruling United States v. Hubbard, 28 MJ 203, United States v. Epps, 25 MJ 319, United States v. Wright, 22 MJ 25, United States v. Graves, 20 MJ 344, and United States v. Felty, 12 MJ 438).
(after it was determined on
appeal that the
factual basis for an accused’s guilty pleas could not support
convictions for two
forgery specifications, the application of the closely-related-offense
to affirm two violations of making a false official statements, an
was not an LIO of forgery, violated due process).
United States v. Lubasky, 68 M.J. 260 (a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance: under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person).
(the question whether a
variance to the
ownership of property in a charged larceny specification was fatal
would be one
an appellate court could answer if the factfinder had made findings by
exceptions and substitutions; as noted in RCM 918, exceptions and
may be made by the factfinder at the findings portion of the trial; but
in either the UCMJ or the RCMs suggests that, at the appellate level,
out the alleged property owner in a larceny specification and inserting
name of some other owner is permissible; RCM 918 does not grant an
court the authority to make that change; while Article 59(b), UCMJ,
appellate court with the power to approve or affirm so much of a
includes an LIO where the evidence as to the greater offense is not
sufficient, that provision does not provide authority for the
larceny from one entity is an LIO of larceny from another entity).
United States v. Miller, 67 M.J. 385 (appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process).
States v. Rodriguez, 67 M.J. 110 (where a time
limitation for an
appeal is derived from a statute, the taking of an appeal within the
time is mandatory and jurisdictional; statute-based rules of limitation
distinguished from those having their origin in court-created rules;
jurisdictional significance in the fact that a time limitation is set
a statute because only Congress may determine a lower federal court’s
subject-matter jurisdiction; in contrast, the rule-based time limit may
waived because the procedural rules adopted by a court for the orderly
transaction of its business are not jurisdictional and can be relaxed
court in the exercise of its discretion; an important distinction
jurisdictional statute-based limitations and those created within a
internal rules is that the courts have no authority to create equitable
to jurisdictional requirements).
Denedo v. United States, 66 M.J. 114 (in a BCD special court-martial, the findings and sentence approved by the convening authority are subject to direct review by the court of criminal appeals of the military department concerned; in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness; the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari; a judgment as to the legality of the proceedings becomes final upon the completion of direct review by the court of criminal appeals and (1) expiration of the time for filing a petition for review with the CAAF without such a filing (and without the case otherwise being under review at the CAAF), (2) rejection of a petition for review by the CAAF, or (3) completion of review by the CAAF, subject to requirements regarding potential review by the Supreme Court; in addition, various forms of executive action are required before the results of a court-martial become final; once such action is taken, Article 76, UCMJ, provides, in pertinent part, that orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject to certain explicit exceptions).
(under the exhaustion of remedies doctrine, courts outside the military justice system normally refrain from collateral review of courts-martial until all available military remedies are exhausted).
a general matter, courts outside the military justice system will not
entertain habeas petitions by military prisoners until all available
remedies have been exhausted; however, the exhaustion requirement is
rather than jurisdictional; the circumstances of a particular case
warrant consideration of a habeas petition by an Article
(even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims).
(a writ of error coram nobis requests the court that imposed the judgment to consider exceptional circumstances, such as new facts or legal developments, that may change the result).
(the decision of the court of criminal appeals on a writ petition is subject to appellate review).
(coram nobis permits continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review, but only under very limited circumstances; although a petition may be filed at any time without limitation, a petitioner must meet stringent threshold requirements: (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist).
United States v. Roach, 66 M.J. 410 (the responsibility for appointing appellate counsel rests with the Judge Advocate General under Article 70, UCMJ, but the authority to control the case rests with the courts of criminal appeals).
(if an accused becomes unreasonable in his demands, he may forfeit his right to any appellate assistance by counsel).
(a court of criminal appeals has a number of options in the event of disagreement between counsel and client, including: (1) direction for both client and counsel to separately file their assignments of error; and (2) a requirement for the Judge Advocate General to appoint substitute counsel as a predicate to further appellate proceedings).
(if the accused unreasonably refuses to proceed with assigned or substitute counsel, the court of criminal appeals should stay the proceedings for a period adequate to allow service upon the accused of the order permitting counsel to withdraw, and giving him sufficient time to meet the new situation; in the order releasing counsel, there should be included a notice that different military counsel will not be made available to accused and he must either represent himself or obtain civilian counsel).
(although courts of criminal appeals have a broad mandate to review the record of trial unconstrained by appellant’s assignments of error, that broad mandate does not reduce the importance of adequate representation; where individual civilian counsel’s failure to act is working to the detriment of an appellant, military appellate counsel may not stand by idly, because they remain responsible for protecting the interests of their client; as officers of the court as well as appellate defense counsel, military counsel have an obligation to comply with court orders and protect the interests of their client; in that regard, military appellate counsel can pursue a number of options to fulfill their obligations to the court and their client in the event that civilian counsel does not make a timely filing; each of these options would provide the court with a filing on the merits, including the appellant’s views, the position of military appellate defense counsel, and pertinent explanatory material regarding the posture of the case).
(where a court of criminal appeals does nothing to enforce its order that military defense counsel file an assignment of merits by a date certain, it errs in deciding the case without assistance of counsel and denies appellant the assistance of counsel guaranteed by Article 70 and the plenary review contemplated by Article 66).
(courts of criminal appeals have broad powers to issue orders to counsel to ensure the timely progress of cases reviewed under Article 66; such actions must be taken in a manner consistent with the requirements of Article 70, UCMJ; when counsel appears to be unresponsive, the court has a variety of actions it may take, including: (1) holding a status conference with the parties to inquire into the reason for the delay in filing; (2) ordering appellate defense counsel to show cause as to why they could not file their brief on time; (3) warning counsel that flagrant disregard of the court’s rules for timely filing of briefs could result in suspension or disbarment from practice before the court; (4) asking the Judge Advocate General to direct the assignment of additional or substitute counsel; or (5) appointing another member of the bar to represent appellant on a pro bono basis).
(when appellant has requested representation on appeal that does not appear to be forthcoming, a court of criminal appeals must ensure that military counsel are performing their primary obligation to comply with court orders and protect the interests of the client).
(if the court of criminal appeals determines that circumstances warrant proceeding without a brief filed by appointed military appellate counsel, the court must first provide adequate notice to appellant so that appellant can determine whether to request substitute counsel under Article 70, obtain civilian counsel at the appellant’s expense, or waive the right to counsel and proceed pro se).
(where appellate defense counsel made multiple requests for extension of time and those filings raised substantive issues of concern, the court of criminal appeals erred in presuming a merits submission and in not providing notice to appellant and giving appellant a reasonable opportunity to proceed in an alternative fashion with substitute counsel, retained counsel, or pro se).
(even when difficulties in the relationship between Article 70 counsel and appellant may be attributable to appellant, appellant must still be given a reasonable opportunity to proceed in an alternative fashion with substitute counsel, retained counsel, or pro se).
(courts of criminal appeals may set and enforce deadlines; if a court of criminal appeals encounters multiple requests for extension of time by appellate defense counsel, it should determine the nature of the problem, ensure that appellant understands the available options, and take appropriate action, including requiring that the Judge Advocate General appoint additional or substitute counsel if necessary).
United States v. Ober, 66 M.J. 393 (an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process).
States v. Upham, 66 M.J. 83 (an appellate
court may disapprove a finding
because proof of an essential element is lacking or, as a result of
instructional errors concerning lesser included offenses, may
lesser included offense for the disapproved findings; this is true even
lesser included offense was neither considered nor instructed upon at
of the case).
United States v. Medina, 66 M.J. 21 (any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense).
(while it is appropriate for an appellate court to affirm a lesser included offense in a guilty plea case, an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry).
(in a contested case involving a guilty plea to a clause 3 offense under Article 134, a reviewing court must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order or service discrediting in order to affirm lesser included offenses under clauses 1 or 2 in the event the clause 3 theory is invalidated; in such a case, the members will normally have been instructed as to the alternative theory; this is consistent with the principle that an appellate court may not affirm on a theory not presented to the trier of fact and adjudicated beyond a reasonable doubt).
United States v. Melson, 66 M.J. 346 (when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay).
United States v. Navrestad, 66 M.J. 262 (an appellate court may not affirm a conviction on a theory not presented to the trier of fact; to do so offends the most basic notions of due process, because it violates an accused’s right to be heard on the specific charges of which he or she is accused).
United States v. Pflueger, 65 M.J. 127 (suspension or
remission of all or a part of a sentence does not affect appellate
(direct judicial review provides the final judgment as to the legality of the proceedings in a case involving a punitive separation; the determination that a proceeding was lawful, however, does not constitute the final action on the sentence in a case involving a punitive separation; after legal review is completed, a punitive separation is further reviewed as a matter of executive discretion under Article 71, UCMJ; that portion of a sentence providing for dismissal of an officer may not be executed until approved by the Secretary concerned; with respect to enlisted personnel, a dishonorable or bad-conduct discharge may be ordered executed only by the officer then exercising general court-martial jurisdiction over the accused except as otherwise prescribed by the Secretary concerned; that officer has the power to remit or suspend any unexecuted portion of the sentence).
United States v. Moreno, 63 M.J. 129 (the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution).
United States v. Ribaudo, 62 M.J. 286 (an appellant is entitled to an appeal of right and his death prior to completion of that appeal generally entitles him to abatement of the proceedings ab initio).
(once a court of criminal appeals issues its decision under Article 66(c), UCMJ, an appellant has received his appeal of right and is no longer entitled to application of the policy of abatement ab initio, even if the period to request reconsideration of that decision has not expired; discretionary authority to reconsider a decision does not alter the conclusion that an appellant’s appeal of right is complete when the lower court issues its decision).
(in the event a court of criminal appeals grants reconsideration and withdraws its initial decision or opinion, an appellant’s appeal of right cannot be said to be complete until a new decision or opinion is issued; similarly, where a court of criminal appeals decides to consider a case en banc, Article 66, UCMJ, review cannot be considered complete until the decision of the court en banc is issued; however, there is no basis in law to alter the policy determination of a court of criminal appeals that an appellant who dies after a decision under Article 66(c), UCMJ, has been issued is not entitled to abatement of the proceedings against him ab initio; to the extent that the CAAF decisions in United States v. Roettger, 17 M.J. 453 (C.M.A. 1984) and United States v. Lange, 18 M.J. 162 (C.M.A. 1984) are inconsistent with this decision, those cases are overruled).
(should an appellant die prior to an opinion on reconsideration or en banc by a court of criminal appeals, that appellant would have died prior to completion of his appeal of right and therefore be entitled to abatement ab initio; however, should a court of criminal appeals deny a motion for reconsideration or a hearing en banc, the initial decision or opinion of the court remains valid for purposes of abatement ab initio).
(in light of the fact that the Judge Advocates General have not acted to establish a uniform rule for the courts of criminal appeals, and to ensure consistency among the service courts of criminal appeals, the CAAF extends the following rule to each service court: where an appellant dies after a court of criminal appeals’ decision affirming the findings and sentence under Article 66(c), UCMJ, the appellant is not entitled to abatement ab initio).
United States v. Jones, 61 M.J. 80 (this Court’s well-established approach to supplementing the factual record with affidavits while a case is on appeal is as follows: if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts; by considering such unrebutted declarations, the court is not engaging in factfinding; rather, it is applying the law to unrebutted facts contained within the record, which is a standard role of an appellate court).
United States v. Mizgala, 61 M.J. 122 (appellate review of a litigated speedy trial motion under Article 10, UCMJ, is not waived by a subsequent unconditional guilty plea).
United States v. Chisholm, 59 MJ 151 (an advisory opinion is an opinion issued by a court on a matter that does not involve a justiciable case or controversy between adverse parties; courts established under Article III of the Constitution may not issue advisory opinions; courts established under Article I of the Constitution, such as this Court, generally adhere to the prohibition on advisory opinions as a prudential matter).
(in the present case, where the court of criminal appeals had jurisdiction to review the accused’s court-martial conviction under Article 66(b)(1), UCMJ, was obligated by Article 66(b)(1) to address the validity of the findings and sentence of the court-martial, and was presented with a concrete dispute between adverse parties regarding the appropriateness of the sentence in light of unreasonable post-trial delay, the opinion of the court did not constitute an impermissible advisory opinion).
(the parties in a subsequent case are free to argue that specific aspects of an opinion should be treated as non-binding dicta, but such a possibility does not transform a decision into an inappropriate advisory opinion).
(the certified issue questions whether a pertinent portion of the opinion below represents a valid analysis of the law concerning the post-trial responsibilities of a military judge, and whether that aspect of the opinion constitutes a precedential holding or non-binding dicta; these are the type of questions that may be resolved in the normal course of trial and appellate litigation, should such questions arise in an adversarial setting in a future case; in the present case, however, neither party has challenged the post-trial actions of the military judge who presided at the accused’s court-martial, and the accused has no personal stake in the outcome of any views that this Court might express on the post-trial responsibilities of military judges; in the absence of a challenge by a party to a concrete ruling by a military judge in an adversarial setting, the Court concludes that consideration of the certified issue would be premature).
United States v. Rorie, 58 MJ 399 (abatement ab initio of a conviction upon the death of appellant is neither appropriate nor required at CAAF).
(the first purpose advanced in support of the policy of abatement ab initio relates to the interests of justice and dictates that a defendant should not stand convicted without resolution of the merits of his appeal; CAAF believes that the initial review by a Court of Criminal Appeals provides a military defendant with a substantive legal and factual review; the interests of justice are further enhanced at the Courts of Criminal Appeals by an appellant’s broad right to personally assert matters before the military appellate courts).
(the second purpose advanced for abatement ab initio is that punishment in the criminal arena is personal and the death of the defendant eliminates the purpose of punishment; unquestionably, upon the death of a military defendant traditional punishments such as confinement and forfeiture become moot; however, CAAF believes there remains a substantial punitive interest in preserving otherwise lawful and just military convictions; for persons serving in uniform who are subject to court-martial and for the Government, military status and the nature of a discharge remain significant considerations; CAAF does not believe that the death of an appellant following the resolution of an appeal to the Court of Criminal Appeals moots the punitive purposes or substantial interests attached to a bad-conduct discharge, a dishonorable discharge, or a punitive dismissal from the service).
(another consideration to weigh in analyzing the abatement issue is the impact of abatement ab initio on victims’ rights; where there has been one level of appeal of right, abatement ab initio at CAAF frustrates a victim’s legitimate interest in restitution and compensation).
(CAAF finds further support for its decision not to adopt a policy of abatement ab initio in the nature of the Court’s petition jurisdiction; the discretionary nature of CAAF's petition jurisdiction is more analogous to the Supreme Court’s discretionary certiorari practice, and it does not deprive an appellant of any review of right by changing its policy with respect to abatement ab initio).
(the proper focus of cases dealing with abatement is upon the opportunity for an appeal of right and a conviction that can be relied upon as fair and just; moreover, there is nothing in the plain language of Article 71 imposing a congressional mandate for abatement ab initio; Article 71 no more compels that CAAF adopt a policy of abatement ab initio than it compels the United States Supreme Court to have such a policy with respect to its review of military convictions; the mere possibility that CAAF will exercise its discretion to find good cause for a grant of review does not transform into an appeal of right similar to that existing at the Federal Circuit Courts of Appeals).
(CAAF notes that the rule of abatement ab initio is a matter of policy in the Federal courts; it is not mandated by the Constitution or statute, nor has CAAF adopted it as part of its Rules of Practice and Procedure; absent direction from Congress or the President on this matter, CAAF is convinced that abatement ab initio is not a policy compelled by the interests of justice or its jurisdictional underpinnings).
United States v. Tyndale, 56 MJ 209 (although appellant’s case was tried while United States v. Scheffer, 44 MJ 442 (1996), was the state of the law with respect to admissibility of polygraph evidence in military trials, the court determined to apply the Supreme Court decision in United States v. Scheffer, 523 U.S. 303 (1998), retroactively and review the trial judge’s admission of a government polygraph as rebuttal to defense polygraph evidence for plain error).
United States v. Cravens, 56 MJ 370 (an appellate court is not an appropriate place to relitigate a motion to admit expert testimony under Mil.R.Evid. 403).
United States v. Campbell, 57 MJ 134 (a system through which the military appellate courts address post-trial issues such as unlawful command influence and prosecutorial misconduct is well established within the military judicial process - military appellate courts return cases to the trial level when it becomes necessary to develop facts not contained within the record of trial, and where affidavits do not suffice).
United States v. Ward, 54 MJ 390 (the death of appellant after his case had been affirmed by the Court of Appeals for the Armed Forces does not provide a basis for reconsideration and abatement of the proceedings where: (1) the interests of justice have been satisfied by resolution of the merits of the appeal by the highest court, and first civilian court, in the military justice system; and (2) the petition for reconsideration and abatement did not demonstrate how court’s decision overlooked or otherwise failed properly to apply the facts or law critical to the original decision).
United States v. Dinges, 55 MJ 308 (whether a victim/witness was given immunity under a mistaken belief that the victim/witness was under 16 years of age was moot where the government never called the victim/witness to testify).
United States v. Tualla,
52 MJ 228 (under stare decisis, adherence to precedent is the
preferred course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial system; but stare decisis need not be
applied when precedent is unworkable or badly reasoned).
United States v. Reed, 54 MJ 37 (there is no requirement in law that appellate courts in general or a Court of Criminal Appeals in particular must articulate its reasoning on every issue raised by counsel).
United States v. Schuler, 50 MJ 254 (under common law doctrine of abatement, if the act underlying a conviction is rendered no longer unlawful by a new statute during direct review, the proceedings must be terminated in favor of the appellant; this doctrine has been restricted, however, by the general federal savings statute, 1 USC § 109).
(general federal savings statute, 1 USC § 109, has been interpreted by Supreme Court to abolish common law doctrine of “abatement” to the extent that the successor statute retains the basic offense and does not substitute a right for a crime).
United States v. Johnston, 51 MJ 227 (when cases arrive at the Courts of Criminal Appeals with defective staff work, they are not ready for review and should be promptly returned to the convening authority before appellate counsel and appellate courts expend effort on reviewing other aspects of a case that may be affected by a proper review and action by the convening authority).
United States v. Gray, 51 MJ 1 (normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered).
(Court of Military Review had basis for summarily denying appellant’s motion to abate proceedings where evidence before that court revealed no permanent deficits from appellant’s apparent drug overdose).
United States v. Barron, 52 MJ 1 (failure to attach certain notes as an appellate exhibit did not preclude meaningful appellate review where: (1) there was no request by the defense that the notes be attached to the record; (2) the notes involved discovery of inculpatory matter rather than exculpatory information; and, (3) appellant’s claim of error could be resolved without specific knowledge of their content).
United States v. Davis, 52 MJ 201 (when faced with conflicting affidavits, a factfinding hearing must be ordered unless the appellate filings and the record of trial was a whole compellingly demonstrate the improbability of facts in an appellant’s otherwise adequate affidavit, in which case, appellant’s factual assertions may be discounted and the legal issues decided on the record).(appellant’s case is remanded for a factfinding hearing relating to his claim of ineffective assistance of counsel - his affidavit indicated that he was misled by his counsel to believe that if he was not dismissed by a court-martial, he would be allowed to retire, and that affidavit cannot be dismissed or discounted where: (1) an understanding of the Temporary Early Retirement Authority could not be imputed to appellant; (2) appellant’s unsworn statement focused on retention of retirement benefits; (3) trial counsel’s sentencing argument indicated that appellant would be able to retire if he was not dismissed; and, (4) nothing said during sentencing indicates that appellant was on notice that despite being adjudged no dismissal his retirement eligibility would remain in peril).