TRIAL STAGES: Appeals: Scope of Review

2013 (September Term)

United States v. Paul, 73 M.J. 274 (it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case). 

United States v. Winckelmann, 73 M.J. 11 (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). 

2011 (September Term)

United States v. King, 71 M.J. 50 (in reviewing the adequacy of a specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication).

2008 (September Term)

United States v. Matthews, 68 M.J. 29 (it is inappropriate to base an appellate opinion on assertions dehors the record). 


2008 (Transition)

Denedo v. United States, 66 M.J. 114 (although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review). 

(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).   


(although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction). 


(the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review). 


(when courts within the military justice system lack subject matter jurisdiction over an action, such as an administrative separation, they cannot invoke the All Writs Act to enlarge their jurisdiction to review the administrative action, even if it is based upon the results of a court-martial). 


(when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system, such as the findings or sentence of a court-martial, a writ that is necessary or appropriate may be issued under the All Writs Act in aid of the court’s existing jurisdiction). 


(on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority; any request for coram nobis relief is limited to the findings and sentence of the court-martial reviewed by the CCA; where, as in this case, appellant has raised a claim of ineffective assistance of counsel that goes directly to the validity and integrity of the judgment rendered and affirmed, a petition for writ of error coram nobis was in aid of the existing jurisdiction of the CCA).


(in terms of the scope of collateral review, the res judicata effect of Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, means that the decision on direct review will stand as final unless it fails to pass muster under the highly constrained standards applicable to review of final judgments).  


(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).

United States v. Roach, 66 M.J. 410 (in addition to reviewing the case for legal error in a manner similar to other appellate courts, Congress has provided the courts of criminal appeals with plenary, de novo power of review and the ability to determine, on the basis of the entire record which findings and sentence should be approved; in that regard, the court conducts a de novo review under Article 66(c) of the facts as part of its responsibility to make an affirmative determination as to whether the evidence provides proof of appellant’s guilt of each offense beyond a reasonable doubt; the court also conducts a de novo review of the sentence under Article 66(c) as part of its responsibility to make an affirmative determination as to sentence appropriateness).


United States v. Carr
, 65 M.J. 39 (an issue is moot if resolving it would not result in a material alteration of the situation for the accused or for the government; mootness is not favored in criminal cases).

(an appellate court may reach the merits of the granted issue of the providence of appellant’s pleas of guilty to the lesser included offense of assault consummated by a battery, even though appellant was eventually convicted, in a litigated trial, of the indecent assaults originally charged, if the court cannot determine with certainty what weight the military judge gave the guilty plea, as opposed to the testimony, in finding appellant guilty of the indecent assaults). 

United States v. Pena, 64 M.J. 259 (on direct appeal, the scope of CAAF’s review does not extend to supervision of all aspects of the confinement and release process; rather, its review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence). 

(appellant’s contention that he was improperly placed on involuntary appellate leave following his release from confinement under the mandatory supervised release program, because under an Air Force Regulation he had not technically completed his period of confinement where he was under a continuing threat of return to prison if he violated the terms of his release, did not fall within the CAAF’s scope of review under Article 67, UCMJ; the relationship between completion of confinement and commencement of leave is a matter governed by administrative regulations and service practices and appellant failed to demonstrate that the applicable regulations, either on their face or as applied, violated Article 76a, UCMJ, or any other provision of the UCMJ).


United States v. Cravens
, 56 MJ 370 (special agent’s state of mind, i.e., did he knowingly and intentionally, or with reckless disregard for the truth, mislead the military magistrate, was a question of fact for the trial judge, was resolved adversely to the defense, and that finding supported by evidence in the record; the military judge’s factfinding as to state of mind was not shown to be clearly erroneous).


United States v. Riley
, 55 MJ 185 (on a remand from the Court of Appeals for the Armed Forces, a Court of Criminal Appeals can only take action that conforms to the limitations and conditions prescribed by the remand; a mandate to clarify whether the evidence was insufficient to support a lesser-included offense cannot reasonably be construed to permit reinstatement of the greater offense).

(a remand mandate to clarify a finding that the evidence was insufficient to establish the manner of death does not encompass overturning that finding and substituting specific findings as to the manner of death).


United States v. Pablo
, 53 MJ 356 (because the Government did not challenge Court of Criminal Appeals holding that residual hearsay was inadmissible, Court of Appeals for the Armed Forces’ review was limited to the lower court’s conclusion that the error was harmless).


United States v. Fee
, 50 MJ 290 (on issues of sentence appropriateness, Court of Appeals for the Armed Forces is limited to determining, as a matter of law, whether the decision of the Court of Criminal Appeals constituted an abuse of discretion or a miscarriage of justice).

United States v. Fee, 50 MJ 290 (on appeals involving closely related cases with highly disparate sentences, Court of Appeals for the Armed Forces may reverse Court of Criminal Appeals only in the absence of a rational basis for the differing sentences).

United States v. Lacy, 50 MJ 286 (in reviewing actions of the Courts of Criminal Appeals on sentence appropriateness, Court of Appeals for the Armed Forces review is limited to preventing obvious miscarriages of justice or abuses of discretion).

United States v. Lacy, 50 MJ 286 (Court of Appeals for the Armed Forces’ review of Court of Criminal Appeals’ decision in case alleging highly disparate sentences is limited to three questions of law:  (1) whether the cases are “closely related”; (2) whether the cases resulted in “highly disparate” sentences; and (3) if relief was not granted in a closely related case involving highly disparate sentences, whether there is a rational basis for the differences between or among the cases).

United States v. Riley, 50 MJ 410 (appellate courts have authority to set aside a finding of guilty and affirm only a finding of a lesser-included offense, but it may not affirm an included offense on a theory not presented to the trier of fact).

United States v. Dawson, 51 MJ 411 (an accused may waive defects in a vacation proceeding and avoid a new vacation proceeding through communications and agreement directly with the convening authority; such an agreement is collateral to the original court-martial, but remains subject to appellate review of claims that an appellant misunderstood the agreement’s meaning and effect or that there was government overreaching).

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