TRIAL STAGES: Appeals: Remedies

Generally:

2013 (September Term)

United States v. Hornback, 73 M.J. 155 (the presence of prosecutorial misconduct does not necessarily mandate dismissal of charges or a rehearing; it is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct). 

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).  

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the appearance of unlawful influence required dismissal of the case with prejudice, rather than retrial; here, the unprofessional actions of the government improperly succeeded in getting the military judge to recuse himself from appellant’s court-martial; were a rehearing authorized, the government would obtain the result it sought to obtain through inappropriate means - a trial with a different military judge; thus, any remedy short of dismissal at this stage would effectively validate the government’s actions; in addition, a rehearing as a remedy would occur over two-and-a-half years after appellant’s original court-martial; appellant had a right to a timely trial before a military judge who had been properly detailed to hear the case, and through no fault of his own, appellant was denied this right as a result of the government’s inappropriate actions causing the disqualification of a military judge; finally, the actions at issue strike at the heart of what it means to have an independent military judiciary and indeed a credible military justice system). 

United States v. Riley, 72 M.J. 115 (the remedy for finding a plea improvident is to set aside the finding based on the improvident plea and authorize a rehearing). 

2011 (September Term)

United States v. Weeks, 71 M.J. 44 (if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside). 

2009 (September Term)


United States v. Trew, 68 M.J. 364 (in this case, the fatally ambiguous findings, caused when the military judge changed the “divers occasions” language to “one occasion” without clarification, created the possibility that the reviewing court would affirm a finding of guilty based on an incident of which the appellant had been acquitted by the factfinder at trial; RCM 1102(c)(1) plainly prohibits post-trial sessions for reconsideration of a finding of not guilty to any specification, or a ruling which amounts to a finding of not guilty; the military judge’s ambiguous findings amounted to a not guilty finding on one of the instances raised by the “divers occasions” charge; thus, a post-trial session to recast the language of the military judge would amount to a reassessment of a not guilty verdict in violation of double jeopardy; the appropriate remedy is to set aside the findings and dismiss the charges with prejudice). 


2008 (September Term)


United States v. Smead, 68 M.J. 44 (appellant bears the burden of establishing that a term in a PTA is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside).

 

(a reviewing court may cure a government breach of a PTA in several ways: requiring specific performance of the initial PTA, providing the appellant with alternative relief, providing an adequate remedy to cure the breach, or allowing withdrawal of the pleas). 


United States v. Wilson, 67 M.J. 423 (the remedy for a Walters violation, where the phrase “on divers occasions” is removed from a specification and there is no indication on the record which of the alleged incidents forms the basis of the conviction, is to set aside the finding of guilty to the affected specification and dismiss it with prejudice).    

 

United States v. Conliffe, 67 M.J. 127 (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; an accused may be found guilty of an offense necessarily included in the offense charged). 

 

2008 (Transition)

United States v. McIlwain, 66 M.J. 312 (not every judicial disqualification error requires reversal; in determining whether a judge’s disqualification warrants a remedy, an appellate court will follow the three-part test announced by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 US 847 (1988):  (1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process). 

 

(reversal is warranted in this case for the military judge’s error in denying the defense’s motion to recuse herself in a members trial after she declared that her participation in companion cases disqualified her from presiding as the trier of fact in a judge-alone trial, where the risk of injustice to the parties is high when a judge who has stated her bias nonetheless presides over the court-martial, even when she does not act as the trier of fact, and where the risk of undermining the public’s confidence in the judicial system is most affected; every time the judge made a decision, she exercised her discretion - a discretion which she herself had found was biased; this could not but produce a corrosive impact on public confidence in the military justice system; the guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact). 

  

United States v. Greatting, 66 M.J. 226 (appellant was entitled to the relief of reversal of his conviction as a result of the military judge’s erroneous failure to recuse himself after his ex parte discussion with the convening authority’s SJA in which he provided a critique about the overall prosecution of companion cases prior to appellant’s court-martial and while clemency matters and appeals in the companion cases were pending; first, the record established a risk that the military judge’s conversation with the SJA adversely affected appellant’s position in pretrial negotiations; second, providing relief in cases such as this [enforcing RCM 902(a)] may prevent a substantive injustice in some future case by encouraging a military judge to more carefully examine possible grounds for disqualification; and third, the conduct of the military judge created the risk of undermining the public’s confidence in the military justice system where a judicial officer interfered into matters entirely within the discretion of the convening authority and gave the appearance that he was aligned with the government). 

 

2007


United States v. Pflueger, 65 M.J. 127 (actions taken by executive branch authorities in the course of acting on a punitive separation under Article 71, UCMJ, are pertinent to the nature of a sentence finally approved for the purposes of Article 58b, UCMJ, which provides for the return of automatic forfeitures when the sentence as finally approved, does not provide for the punishment that triggered the automatic forfeitures; thus, when a punitive separation has been remitted, and consequently cannot be executed, the servicemember is entitled to relief in the form of the return of automatic forfeitures under Article 58b). 


(the CCA did not provide appellant with meaningful sentence relief under Tardif for unreasonable post-trial delay in the form of the return of automatic forfeitures when it disapproved the adjudged bad-conduct discharge that had previously been remitted by the convening authority, where that remission action already satisfied the Article 58b statutory requirement for the return of the forfeitures).


United States v. Wise, 64 M.J. 468 (where, on the present record, appellant’s confinement in irons following his conviction implicated his right to be free from cruel or unusual punishment and CAAF lacks the necessary facts to determine whether the use of irons was necessary for safe custody and thus nonpunitive given the combat context presented, the record of trial must be returned to the JAG for remand to the court of criminal appeals to resolve the factual issue of why appellant was confined with irons; if necessary, that court may order a DuBay hearing; if the court of criminal appeals orders further fact-finding and the convening authority determines that such fact-finding is impracticable, the convening authority may resolve the matter and moot the necessity for further fact-finding by awarding appellant confinement credit for the period of time he was confined in irons).


United States v. Beatty, 64 M.J. 456 (remand to the court of criminal appeals for a proper factual and legal sufficiency review of the findings of guilty of indecent liberties with a child and indecent acts with a child was the appropriate remedy, where the assessment of the alleged victim’s credibility by the court of criminal appeals was at best ambiguous; from the record, the Court of Appeals for the Armed Forces could not determine whether the court of criminal appeals in fact considered evidence from outside the record – that is, whether it considered the alleged victim’s testimony in pretrial motion practice or in presentencing on the issue of her credibility). 


(in a case where the underlying validity of the Article 66(c), UCMJ, review is in question, the Court of Appeals for the Armed Forces does not test for prejudice; rather, the remedy is to remand the case for a proper factual and legal sufficiency review of the findings of guilty). 


United States v. Tate, 64 M.J. 269 (by its terms, RCM 705(c)(1)(B) provides that an impermissible term or condition in a pretrial agreement shall not be enforced; in some cases, the presence of an impermissible term requires an appellate court to void the entire agreement and authorize a rehearing; in other cases, an impermissible term may be treated as null without impairing the remainder of the agreement; in the present case, in view of the agreement of both parties on this matter, the terms and conditions that would deprive appellant of parole and clemency consideration under generally applicable procedures may be stricken without impairing the balance of the agreement and the plea). 


2006


United States v. Rodriguez-Rivera, 63 M.J. 372 (even assuming that the delay of over six years to complete appellant’s appeal of right denied him his right to speedy review and appeal, no additional relief is appropriate or warranted where appellant had served his full term of confinement and reduction of adjudged forfeitures would have no meaningful effect in light of the provisions for automatic forfeitures; in addition, reducing the period of confinement enough to have a significant impact upon collected forfeitures would also require a dramatic reduction in the period of confinement that is unwarranted under the circumstances of this case; to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay).


United States v. Harvey, 64 M.J. 13 (dismissal is a drastic remedy and courts must look to see whether alternative remedies are available). 


(dismissal of charges is permissible when necessary to avoid prejudice against the accused and the findings of fact of the military judge document the prejudice to the accused from the egregious error in the case).


(the appropriate remedy for the failure of a military judge to shift the burden to the government after the issue of unlawful command influence was raised by the presence of the convening authority in the courtroom during closing arguments on findings was to set aside the findings and sentence without prejudice, thereby permitting a rehearing, rather than remand the case for a DuBay hearing, where the error involved the fundamental fairness of the court-martial and where almost seven years had elapsed since the court-martial panel’s deliberations due to excessive and unreasonable post-trial delay). 


(the appropriate remedy for a denial of speedy appellate review where a rehearing was authorized and there was presently no direct meaningful sentence relief that could be provided appellant was to afford appellant relief by limiting the sentence that may be approved by the convening authority should a rehearing result in a conviction and a new sentence). 


United States v. Shelton, 64 M.J. 32 (the only appropriate remedy available to address the military judge’s erroneous evidentiary ruling in the context of a conditional guilty plea that reserved to appellant the right to appeal his pretrial motion to suppress and to withdraw his guilty plea if successful on appeal was to allow appellant to withdraw his guilty plea). 


United States v. Lewis, 63 M.J. 405 (dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; dismissal of charges with prejudice, however, is an appropriate remedy where the error cannot be rendered harmless). 


(the appropriate remedy to cure the actual and apparent unlawful command influence arising from the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge is the drastic one of reversing the decision of the lower court, setting aside the findings and sentence, and dismissing the charges with prejudice; this is the only remedy to cure the unlawful command influence and ensure the public perception of fairness in the military justice system).


United States v. Quintanilla, 63 M.J. 29 (the improper exclusion of a member for being opposed to capital punishment does not result in an unrepresentative panel on the issue of guilt or substantially increase the risk of conviction; consequently, in this case, where the military judge erroneously granted a government challenge for cause because of the judge’s concerns regarding the member’s ability to impose the death penalty, the appropriate remedy was an affirmance of the findings but a reversal of the sentence; here, the military judge’s erroneous ruling had no impact on the defense’s right to exercise its single peremptory challenge, and there was no allegation that any of the members who sat on the panel held a bias against appellant or otherwise should have been disqualified).


2005


 United States v. Jones, 61 M.J. 80 (where a case involves a finding of legal error accompanied by Article 59(a) prejudice, this Court may order a remedy ourselves rather than remanding the case for that purpose; formulating such a remedy is an exercise of authority under Article 59(a) to eliminate material prejudice to appellant’s due process rights; it is entirely distinct from the lower court’s Article 66(c) sentence appropriateness powers).
 
(denial of the right to speedy trial results in dismissal of the charges only if reversible trial errors occurred and it is impossible to cure those errors at a rehearing because of the excessive post-trial delay). 
 
(appellate courts are not limited to either tolerating the intolerable or giving an appellant a windfall; rather, in cases involving unreasonable post-trial delay, courts should tailor an appropriate remedy, if any is warranted, to the circumstances of the case). 
 
(in this case, an appropriate remedy is to disapprove the bad-conduct discharge, where appellant pleaded guilty, and nothing that has occurred since trial has suggested that the findings were not accurate; setting aside the findings would be a windfall for appellant; setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay has caused; the post-trial delay has had an adverse effect on appellant’s ability to find employment; removing the bad-conduct discharge’s adverse effect on appellant’s employment opportunities may help to restore him to the position he would have been in had the post-trial review been accomplished with reasonable speed).


United States v. Scheurer, 62 M.J. 100 (because double jeopardy principles would bar any rehearing on incidents of which appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters [58 M.J. 391 (C.A.A.F. 2003)] violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice). 


2004

 

United States v. Gore, 60 MJ 178 (we have long held that dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings).

 

2003

United States v. Holt, 58 MJ 227 (where appellant did not receive a proper legal review under Article 66(c), UCMJ, the remedy is a remand to the Court of Criminal Appeals for a proper review).

2002

United States v. Quintanilla, 56 MJ 37 (there is a three-part test for determining whether reversal of a conviction or decision should be granted as a remedy when a judge has failed to recognize that his or her disqualification was required because the judge’s impartiality might reasonably be questioned: the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process).

United States v. Butcher, 56 MJ 87 (there is no mandated particular remedy for situations in which an appellate court determines that the military judge should have removed himself or herself from a case).

(there is a three-part test for determining whether reversal of a conviction or decision is warranted as a remedy when a judge has erred in failing to recognize that disqualification was required because the judge’s impartiality might be questioned:  the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process).

United States v. Sills, 56 MJ 239 (the intermediate appellate courts are authorized to order sentence-only rehearings; Jackson v. Taylor, 353 U.S. 569 (1957), is not to the contrary.  See United States v. Miller, 10 USCMA 296, 27 CMR 370 (1959)).

United States v. Pinson, 56 MJ 489 (interference with the attorney-client privilege does not per se require the drastic remedy of reversal).

(interference with the attorney-client privilege may warrant reversal where the invasion impacted on the attorney’s performance or resulted in the disclosure of privileged information at the time of trial; factors to consider include:  (1) whether an informant testified at the accused’s trial as to the conversation between the accused and his attorney; (2) whether the prosecution’s evidence originated in these conversations; (3) whether the overheard conversations were used in any other way to the substantial detriment of the accused; or (4) whether the prosecution learned from the informant the details of the conversations about trial preparations).

(Even where there is an unjustified invasion into the attorney-client relationship, such as where agents meet with a defendant who is known to be represented by an attorney, without defense counsel’s knowledge or permission, remedial action must be tailored to the injury suffered; where there is no prejudice of any kind, either transitory or permanent, to the ability of counsel to provide adequate representation in these criminal proceedings, there was no justification for such drastic relief as a dismissal with prejudice).

(The remedy for an unjustified invasion into the attorney-client relationship in the criminal proceeding is limited to denying the prosecution the fruits of its transgression).

(reversal is not required for alleged unjustified invasion into the attorney-client relationship where: (1) there was a legitimate search of appellant’s quarters; (2) there was no direct interference with the attorney-client relationship; (3) no direct evidence was used at trial; (4) even though two privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting; and (5) the government’s case was based on independent evidence).

2000

United States v. Harris, 53 MJ 86 (where disapproval of certain offenses reduced the maximum period of confinement from life to 18 months, such a vast disparity between the maximum punishments for the offenses dismissed and those affirmed made it impossible for a court to ascertain that appellant’s sentence would have been no greater than a bad-conduct discharge and ten months confinement absent the dismissed offenses; this case presents one of those occasions when the only fair course of action is to have an accused resentenced at the trial level).

United States v. Sapp, 53 MJ 90 (Article 59(a), UCMJ, provides for the general power of reviewing authorities to approve or affirm only so much of a finding as includes a lesser-included offense).

(an appellate court may affirm a lesser-included offense where a guilty plea to an original greater charge cannot be sustained - factors to consider in doing so include:  (1) whether the appellant had been placed on notice of the lesser charge; (2) whether the appellant admitted the elements necessary to sustain the lesser offense during the providence inquiry; and (3) whether the lesser and greater offenses were closely related to one another).

United States v. Augustine, 53 MJ 95 (Article 59(a), UCMJ, provides for the general power of reviewing authorities to approve or affirm only so much of a finding as includes a lesser-included offense).

United States v. Yunk, 53 MJ 145 (in a “Judgement of the Court” (two judges agreeing), the action of the Court of Criminal Appeals, which granted appellant relief for 11 days of illegal pretrial confinement by reducing the adjudged and approved forfeitures, was affirmed despite the fact that the reduction in forfeitures provided no “meaningful” relief in light of automatic forfeitures; there was no abuse of discretion in declining to set aside the punitive discharge or otherwise massively reduce the various sentencing components).

United States v. Davis, 53 MJ 202 (failure to instruct on lesser-included offense of negligent homicide was error that required setting aside appellant’s conviction of involuntary manslaughter because the members were never instructed to consider two possible causes for infant’s death, and thus the members did not address whether appellant’s negligence in any form – not attaching the vehicle seatbelt to an infant car seat, not properly fastening the straps to car seat, or negligently shaking the infant – was the cause of the child’s injuries and death).

United States v. Becker, 53 MJ 229 (dismissal of charges is not an appropriate remedy for a speedy trial violation at a sentence-only rehearing where an accused’s guilt already has been determined and affirmed on appeal, and where the only remaining determination is the sentence).

1999

United States v. McLaughlin, 50 MJ 217 (1999) (appellant is not entitled to relief on appeal from impermissible term of pretrial agreement waiving speedy trial issue absent prima facie showing or colorable claim of entitlement to relief, such as a showing of prejudice, demand for speedy trial, or lack of due diligence).

United States v. Lee, 50 MJ 296 (1999) (errors in post-trial processing create records that are not ready for appellate review and, when called to the attention of the Court of Criminal Appeals, preferably should be returned to the convening authority because it is that official’s duty to consider what action is appropriate under the circumstances; otherwise, immediate corrective action should be taken at the Court of Criminal Appeals).

United States v. Abrams, 50 MJ 361 (1999) (where military judge examined personal personnel records in camera, but those records were not sealed and attached to the record of trial, proper appellate review is impossible; case was remanded to the court below with an order to produce the missing records).

United States v. Miley, 51 MJ 232 (1999) (conflicting and incomplete affidavits left record unacceptable for appellant review of lawfulness of revocation of suspension; further proceedings pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), were necessary to consider specific questions or, if those proceedings were impracticable, a new vacation proceeding was authorized).


DuBay/Factfinding hearing:


2010 (September Term)

United States v. Hull, 70 M.J. 145 (in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence;  the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)).

1999

United States v. Sherman, 51 MJ 73 (where post-trial submissions from appellant, defense counsel, and trial counsel raise factual dispute about (1) whether there was a sub rosa agreement not to raise motions concerning unlawful command influence and illegal pretrial confinement, (2) whether appellant gave untruthful answers to trial judge, (3) whether defense counsel knew that appellant’s answers were untruthful, and (4) whether other matters suggesting unlawful command influence were correct, there were too many unresolved questions in the record for the court to affirm; case remanded for a fact-finding hearing on specified issues).

United States v. Haagenson, 52 MJ 34 (where a claim that unlawful command influence pressured a commander to change his discretionary referral decision was supported by affidavit sufficient to raise such issue, and the claim was neither inadequate on its face nor conclusively refuted by the files and records of the case, a factfinding hearing is necessary).


Evidentiary hearing:


1999


United States v. Diaz-Duprey, 51 MJ 168 (1999) (where appellant made a colorable claim of ineffective assistance of counsel, in light of United States v. Ginn, 47 MJ 236 (1997), an evidentiary hearing was necessary to resolve the issue).


Rehearing:

2013(September Term)

United States v. Winckelmann, 73 M.J. 11 (a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings). 

(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial). 

(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF). 

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (a court of criminal appeals has discretion to order a sentencing rehearing in a general court-martial that had sentenced appellant to a dishonorable discharge and twelve years of confinement when the record of trial included a verbatim transcript but was incomplete because of the substantial omission of a sentencing exhibit due to the absence; nothing in Articles 18 or 54, UCMJ, and nothing in RCM 1103 compels a limitation on sentence to that which could be approved if there was not a verbatim transcript (i.e., no discharge and no confinement in excess of six months); and the MCM - including Article 54, UCMJ, and RCM 1103 - does not limit a court of criminal appeals’ discretion to remedy an error in compiling a complete record; in contrast, RCM 810(a)(2) specifically authorizes a rehearing on sentence, as does Article 63, UCMJ, and Article 66(d), UCMJ; where a court of criminal appeals exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the court of criminal appeals, as required by Articles 54 and 66, UCMJ). 

(in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence). 

2010 (September Term)

United States v. Hull, 70 M.J. 145 (a convening authority is authorized to modify the findings and sentence of a court-martial as a matter of command prerogative involving the sole discretion of the convening authority; when taking action on the results of trial, the convening authority may order a rehearing as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only). 

(in practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General or appellate courts under Article 73, UCMJ; the convening authority’s power to order a rehearing under Article 60, however, differs in a number of significant respects from the authority to order a new trial under Article 73 by the Judge Advocate General and appellate courts; a petition under Article 73 may be submitted at any time within two years after approval by the convening authority of a court-martial sentence on the grounds of newly discovered evidence or fraud on the court, and is subject to the standards and criteria set forth in RCM 1210; by contrast, the convening authority, who may order a full or partial rehearing when taking post-trial action on the case as a matter of command prerogative, is not limited by the standards and criteria of Article 73 and RCM 1210).

(in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence;  the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)). 

(where the defense in this case submitted a post-trial request for a rehearing invoking the new trial criteria of RCM 1210 and the SJA then proceeded to address the defense request on the terms raised by the defense, in that context, it was not inappropriate for the SJA to apply the criteria set forth in RCM 1210 by analogy to the rehearing request; although the SJA might have added further information concerning the distinction between a “new trial” ordered during appellate review under Article 73, and a “rehearing” ordered by a convening authority under Article 60, omission of that information did not constitute error in the context of the defense request). 

(requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence). 

(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense). 

(in light of the nature of the defense’s request for a rehearing based on newly discovered evidence and the absence of a defense request for a post-trial Article 39(a) session, the SJA did not misadvise the convening authority by noting that the newly discovered evidence fell within the parameters of RCM 1210, but then recommending against granting a rehearing; viewed in its entirety, the SJA’s recommendation did not take the position that a new trial was required under the criteria set forth in RCM 1210; instead, the recommendation made clear that the SJA was advising the convening authority that the defense evidence could be considered under the criteria of RCM 1210, but that the nature of the evidence did not warrant a new trial under those criteria; as such, the convening authority did not abuse her discretion in approving the findings and sentence and not ordering a rehearing). 

2006

United States v. Davis, 63 M.J. 171 (as a general matter, a rehearing may adjudge any punishment authorized by the MCM; however, rehearings are constrained by specific limitations on the sentence that may be approved by the convening authority; offenses on which a rehearing has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory).


(the language of the discussion to RCM 1005(e)(1) appears to limit the sentence at a rehearing to that which was adjudged by a prior court-martial or approved on review; however, this discussion has not been changed since it appeared in the MCM, and does not reflect the 1992 amendment to Article 63, UCMJ, and is inconsistent with the substance of the 1995 amendment to RCM  810(d); in any event, this discussion is non-binding and not controlling over specific provisions of the UCMJ). 


(the authority of a rehearing to adjudge a sentence is limited only by the maximum authorized sentence for the offenses of which the accused has been found guilty or the jurisdictional maximum of the court-martial; at a rehearing, the sentencing body, whether members or military judge, should consider the evidence in aggravation, extenuation, and mitigation in light of the allowable maximum sentence for the findings of guilty and adjudge an appropriate sentence; the burden of protecting an accused against higher sentences rests with the convening authority at the time action is taken on an adjudged sentence from a rehearing). 


United States v. Buber, 62 M.J. 476 (in this case, the sentencing landscape changed dramatically as a result of the CCA’s decision; there were no longer findings of murdering and assaulting a child; there was no longer a maximum sentence that included confinement for life without eligibility for parole; instead, the sentencing body now had before it a single false official statement and a maximum sentence that included only five years of confinement; in light of this dramatic change in the sentencing landscape, the only fair course of action was to order a sentence rehearing).  

 

2003

United States v. Riley, 58 MJ 305 (the court members considered a maximum sentence including life imprisonment but imposed a term of 25 years; the maximum term of confinement is now three years; the offense has been reduced from an intentional killing to an act of simple negligence resulting in death; in light of the dramatic change in the penalty landscape in this case, we do not believe that an appellate court can reliably determine what sentence the members would have imposed; we conclude that the only fair course of action is a sentencing rehearing).

2002

United States v. Doss, 57 MJ 182 (if the court cannot reliably determine what sentence would have been imposed at the trial level if the error had not occurred, then a sentence rehearing is required).

1999

United States v. Allen, 50 MJ 84 (1999) (After consolidating three rape specifications, rehearing on sentence was not necessary where: (1) evidence indicated that intercourse occurred “more than once” rather than on specific dates; (2) the multiple findings did not increase the maximum punishment; (3) the sentence adjudged included offenses other than rape and was well below the maximum; and (4) Court was confident that members sentenced appellant based on evidence of the course of conduct reflected in the consolidated specification).

United States v. Davis, 50 MJ 426 (1999) (although the remedy for an illegal pretrial agreement that violated the prohibitions of United States v. Bertelson, 3 MJ 314 (CMA 1977), would be to permit this appellant to present evidence at a rehearing, such relief was not warranted where appellant proffered no evidence that was precluded by the pretrial agreement and no evidence of government overreaching).

United States v. Curtis, 52 MJ 166 (1999) (Court of Criminal Appeals is not required to consider a rehearing on sentence unless it determines that it cannot reliably reassess the sentence, i.e., be convinced that appellant’s sentence would have been at least of a certain magnitude).


Remand:


2010 (September Term)

 

United States v. Lusk, 70 M.J. 278 (in a prosecution for wrongful use of cocaine, remand was necessary to the court of criminal appeals to determine if a military judge’s error was harmless in failing to give a limiting instruction concerning the appropriate use of inadmissible evidence used by an expert witness in formulating his opinion on the reliability of a laboratory test report).

 

2009 (September Term)

 

United States v. Campbell, 68 M.J. 217 (failure of the court of criminal appeals to recognize that the military judge had consolidated two specifications of violating a general order, rather than two specifications of possessing child pornography required remand for sentence reassessment)


2002

 

United States v. Washington, No. 01-0658 (if the decision of the Court of Criminal Appeals raises substantial questions as to whether there has been an appropriate allocation of the burden, Court of Appeals for the Armed Forces cannot rely on the presumption that the court below applied the law correctly, and a remand is required to ensure that the court below applies a level playing field).


Sentence reassessment:

2013(September Term)

United States v. Winckelmann, 73 M.J. 11 (if a CCA can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error). 

(in light of the experience, training, and independence of military judges, CCAs act with broad discretion when reassessing sentences; a CCA’s reassessment will only be disturbed in order to prevent obvious miscarriages of justice or abuses of discretion). 

(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial). 

(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF). 

(based on the totality of circumstances, including the four illustrative factors outlined by the CAAF, the CCA did not abuse its discretion or cause any obvious miscarriage of justice in reassessing appellant’s sentence after dismissing two indecent language findings, where (1) appellant remained exposed to fifty-one years of confinement, which was otherwise limited by the thirty-one years adjudged at the original court-martial, (2) appellant remained convicted of five offenses, which continued to reflect the gravamen of the original charges at court-martial, and (3) much of the aggravating evidence introduced at trial remained relevant and could properly be considered by the CCA during its reassessment analysis). 

2006


United States v. Moffeit, 63 M.J. 40 (a court of criminal appeals, in dismissing a charge, may reassess the sentence and that sentence must be equal to or no greater than a sentence that would have been imposed if there had been no error; thus, if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; however, if the error at trial was of constitutional magnitude, then the court must be satisfied beyond a reasonable doubt that its reassessment cured the error).


(the CCA did not abuse its discretion in concluding that it could determine to its satisfaction that, absent any error, the adjudged sentence for the remaining offense would have been at least the severity of the sentence that the court approved on reassessment where the CCA had extensive experience with the level of sentences imposed for such an offense, where a substantial maximum was still available, where the reassessed sentence was well below that maximum, and where the remaining charge was the most serious offense and had a negative impact in the community).


United States v. Buber, 62 M.J. 476 (a CCA can reassess a sentence to cure the effect of prejudicial error where that court can be confident that, absent any error, the sentence adjudged would have been of at least a certain severity; where the CCA can be so convinced, then that court may reassess and affirm only a sentence of that magnitude or less).


(if the CCA can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error; and the demands of Article 59(a) will be met; of course, even within this limit, the CCA will determine that a sentence it proposes to affirm will be appropriate, as required by Article 66(c), UCMJ; in short, a reassessed sentence must be purged of prejudicial error and also must be appropriate for the offense involved).


(to validly reassess a sentence to purge the effect of error, a CCA must be able to make a number of determinations; it must be able to discern the extent of the error’s effect on the sentence; the reassessment must be based on a conclusion that the sentence that would have been imposed at trial absent the error would have been at least of a certain magnitude; this conclusion about the sentence that would have been imposed must be made with confidence; no higher sentence than that which would have been imposed by the trial forum may be affirmed; and a dramatic change in the penalty landscape gravitates away from the ability to reassess).


2002

United States v. Doss, 57 MJ 182 (Court of Appeals for the Armed Forces will overturn the lower court’s sentence reassessment only to prevent obvious miscarriages of justice or abuses of discretion).

(a Court of Criminal Appeals may properly reassess a sentence if the court can determine that, absent the error, the sentence would have been at least of a certain magnitude, then it may cure the error by reassessing the sentence instead of ordering a sentence rehearing; a sentence of that magnitude or less will be free of the prejudicial effects of error).

(if the error at trial was of constitutional magnitude, then the court must be satisfied beyond a reasonable doubt that its sentence reassessment cured the error).

(in a situation in which the inadequacy of counsel has resulted in the omission of evidence that, under the standards of Strickland v. Washington, 466 U.S. 668 (1984), could have made a difference in the sentence imposed if it had been made a matter of record, the Court of Criminal Appeals cannot reassess the sentence accurately because the record is not complete).

(defense counsel’s ineffective representation during sentencing made it impossible to reliably reassess the sentence, because:  (1) 19 pages of medical documentation submitted to the convening may be only the tip of the iceberg; (2) the significance of those 19 pages cannot be fully appreciated without expert testimony; and (3) it is impossible to determine what evidence a competent defense counsel would have presented).

(the Court of Criminal Appeals abused its discretion by reassessing the sentence instead of ordering a rehearing because it was impossible to determine what evidence would have been presented by competent counsel; thus, civilian defense counsel’s omissions could not be rendered harmless beyond a reasonable doubt by sentence reassessment).

United States v. Spaustat, 57 MJ 256 (even if appellant should have been released from confinement on December 10 instead of December 27, the additional days of confinement do not warrant granting his request to set aside his bad-conduct discharge).

2001

United States v. Vasquez, 54 MJ 303 (where appellant was prejudiced by the erroneous introduction of an admission of guilt to unauthorized absence made in conjunction with a request for administrative separation in lieu of court-martial (Mil. R. Evid. 410), it could not be reliably determined that the military judge would have imposed a bad-conduct discharge in the absence of the evidence of the 212-day unauthorized absence; consequently, Court of Criminal Appeals could not reassess and affirm the bad-conduct discharge).

United States v. Riley, 55 MJ 185 (if a Court of Criminal Appeals determines that a finding of guilty should not be affirmed, for either legal or factual reasons, that determination means that the appellant has been wrongly convicted and is entitled to sentence reassessment or rehearing under the principles announced in United States v. Sales, 22 MJ 305 (CMA 1986)).

2000

United States v. Eversole, 53 MJ 132 (when a Court of Criminal Appeals reassesses a sentence due to some error in the proceedings, that court affirms, if it feels it can, only so much of the sentence as would have been imposed at the original trial absent the error; the Court of Appeals for the Armed Forces will not disturb that reassessment, except to prevent obvious miscarriages of justice or abuses of discretion).

(in light of some unique circumstances, Court of Appeals for the Armed Forces set aside Court of Criminal Appeals’ reassessment of a sentence where majority was “at a loss to know how any appellate authority could know, with any degree of certainty, what a trial court would have done regarding the punitive discharge under these circumstances”).

United States v. Wilson, 54 MJ 57 (because of the highly discretionary nature of the convening authority’s action on the sentence, court will grant relief if an appellant presents some colorable showing of possible prejudice as a result of a cognizable error in the SJA’s post-trial recommendation).

1999


United States v. Hawes, 51 MJ 258 (Courts of Criminal Appeals may purge the prejudicial impact of error by reassessing the sentence if that court can confidently discern the extent of the error’s effect on the sentencing authority’s decision and determine that the accused’s sentence would have been at least of a certain magnitude; but, no higher sentence may be affirmed by the appellate court than would have been adjudged at trial absent the error).

(Court of Criminal Appeals did not abuse its discretion by reassessing sentence to purge the prejudicial impact of error where that court used its military experience and expertise to determine that a fraternization offense [for permitting a breach of military courtesy], which that court dismissed, was trivial in light of remaining use of marijuana offense, and where that court determined appellant’s sentence would be at least the same as the adjudged sentence).

United States v. Taylor
, 51 MJ 390 (Courts of Criminal Appeals may exercise their discretion to cure the prejudicial impact of error by reassessing the sentence if that court can say with confidence that the sentence would have been at least of a certain magnitude even though the sentence reassessing authority may not be able to determine with precision the exact sentence that would have been adjudged absent the error).

(based upon the original charges and facts of this case, Court of Criminal Appeals did not abuse its discretion by reassessing sentence to cure the prejudicial impact of error and determining that the minimum sentence would have at least included a punitive discharge).

United States v. Kerr
, 51 MJ 401 (Court of Criminal Appeals did not abuse its discretion in determining that appellant’s sentence would have been the same even if he had been convicted on only one of two virtually identical, multiplicious specifications alleging the same act).

United States v. Curtis
, 52 MJ 166 (the plain language of Article 66(c), UCMJ, its legislative history, and the precedents of the Supreme Court and Court of Appeals for the Armed Forces provide ample authority for the Courts of Criminal Appeals to cure an error in the imposition of the death sentence by reassessing the sentence to life imprisonment).

(Court of Criminal Appeals did not abuse its discretion by reassessing sentence to confinement for life rather than authorizing rehearing at which sentence of death would be available since that court could discern that the sentence would have been at least life imprisonment, the statutory minimum for the offenses involved).


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