TRIAL STAGES: Appeals: Courts of Criminal Appeals

 

 

Generally:

2013 (September Term)

United States v. Janssen, 73 M.J. 221 (military officers serving as trial and appellate military judges are not appointed in violation of the Appointments Clause because Congress has not, by statute, required a separate judicial appointment for them, and their judicial duties are not so distinct from their duties as military officers as to require separate appointments by the force of the Appointments Clause; their appointments as officers by the President, upon Senate advice and consent, suffice to satisfy the requirements of the clause). 

(civilian appellate military judges are “inferior Officers” within the meaning of the Appointments Clause of the Constitution, and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint them; however, Congress may by law vest the appointment of such inferior officers in heads of departments).

(Congress has not “by law” specifically vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause; general, government-wide “housekeeping” statutes did not provide the necessary authority). 

(while Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint civilian appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint civilian appellate military judges, it has not done so; as such, the appointment of a civilian appellate military judge was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers; where this was not done, the appointment of a civilian appellate military judge by the Secretary of Defense was invalid and of no effect). 

(although the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of his appointment to office is deficient, in this case, where the Secretary of Defense invalidly appointed a civilian appellate military judge to the court of criminal appeals, the de facto officer doctrine was not applied because petitioner challenged the composition of the court while his case was still on direct review; applying the doctrine in such a case would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments). 

United States v. Danylo, 73 M.J. 183 (timely management and disposition of cases docketed at the Courts of Criminal Appeals is a responsibility of the Courts of Criminal Appeals).    

(Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court). 

(Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions). 

United States v. Moss, 73 M.J. 64 (the decision whether to take an appeal to an appellate court is personal to an appellant). 

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). 

2012 (September Term)

LRM v. Kastenberg, 72 M.J. 364 (the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition).  

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). 

2011 (September Term)

United States v. Bradley, 71 M.J. 13 (the CCAs are bound by the CAAF’s conclusions of law on remand). 

(in this case on remand from the CAAF, the CCA was substantively bound by the CAAF’s holding that appellant’s mistaken view on whether his motion to disqualify trial counsel was waived did not render his unconditional guilty pleas improvident). 

United States v. Winckelmann, 70 M.J. 403 (under Article 66(c), UCMJ, the CCA may act only with respect to the findings and sentence as approved by the convening authority; where in this case, the CCA affirmed a forfeiture of pay even though the convening authority did not approve such a forfeiture, the CCA committed error; however, the error was not prejudicial; under Article 58b, UCMJ, appellant had already forfeited any claim to the pay and allowances due to him during his confinement; because the convening authority did not waive the automatic forfeiture under Article 58b, UCMJ, appellant was not entitled to pay and allowances). 

2010 (September Term)

United States v. Zarbatany, 70 M.J. 169 (a remand of this case to the CCA for a new Article 66(c), UCMJ, review, is necessary to determine whether the circumstances of appellant’s case warrant additional relief for a violation of Article 13, UCMJ, as a matter of law, or whether such relief would be disproportionate, where (1) the pretrial confinement conditions in this case violated Article 13, UCMJ, and constituted pretrial punishment, (2) after the convening authority’s action, 415 days of excess confinement credit remained, and the only meaningful relief that could be provided to appellant would have to be addressed to his punitive discharge, and (3) it is unclear whether the lower court operated under a correct view of the law in reviewing appellant’s sentence and in exercising its appropriateness power - i.e., it is unknown if the CCA considered such relief unwarranted, unavailable, or available but disproportionate, it is unclear whether the CCA operated on the belief that meaningful relief was required where proportionate under the circumstances, and it appears that the CCA may have subsumed the issue of meaningful relief into a question of credit conversion under RCM 305(k) alone, and then as a question of sentence-appropriateness review under Article 66(c), UCMJ, where it operates at its broadest discretion). 

2009 (September Term)
 

United States v. Nerad, 69 M.J. 138 (while CCAs have broad authority under Article 66(c), UCMJ, to disapprove a finding, that authority is not unfettered; it must be exercised in the context of legal - not equitable - standards, subject to appellate review; relatedly, while Article 66(c), UCMJ, affords a CCA broad powers, when faced with a constitutional statute, a CCA cannot, for example, override Congress’s policy decision, articulated in a statute, as to what behavior should be prohibited). 

 

(where it is unclear from the CCA’s opinion whether it exceeded its authority by disapproving a finding with reference to something other than a legal standard, potentially infringing on the sole prerogative of the convening authority under Article 60, UCMJ, to disapprove a finding based on purely equitable grounds, and where it is also unclear from the CCA’s opinion whether the CCA abused its discretion by refusing to affirm a finding because it thought it “unreasonable” to criminalize such conduct “under the circumstances,” even though the circumstances fell squarely within the definition of child pornography crafted by Congress and referenced by the CCA, the case must be remanded for further proceedings before the lower court). 

 

(Article 66(c), UCMJ, states, that a CCA may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; broken into its constituent parts, this statutory language provides that a CCA may affirm only such findings and sentence that it: (1) finds correct in law; (2) finds correct in fact; and (3) determines, on the basis of the entire record, should be approved). 

 

(findings and sentence are grammatically coupled in Article 66(c), UCMJ, joined equally with the phrase, “and determines ... should be approved;” the phrase “should be approved” must have meaning with respect to findings as well as sentence and modify both; when a modifier is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents; therefore, it is impossible - based on the statute - to acknowledge a CCA’s power to modify or disapprove a “correct” sentence while disagreeing it has any such power with respect to a “correct” finding.

 

(CCAs may not disapprove findings on equitable grounds or disregard their statutory duty to determine legal and factual sufficiency; a CCA may only set aside a legally and factually sufficient finding on the basis of a legal - as opposed to equitable - ground). 

 

(while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority).

 

(the words “should be approved” in Article 66(c), UCMJ, do have some meaning, and the proposition that the “should be approved” clause of Article 66(c), UCMJ, means only that the lower court can adjust findings and sentences that are incorrect in law or fact, at least as the standards for legal and factual sufficiency are ordinarily understood, is rejected; that approach both fails to afford independent meaning to “should be approved” and renders it surplusage, as a CCA clearly may not approve a legally or factually insufficient finding or an illegal sentence). 

 

(the statutory phrase “should be approved” in Article 66(c), UCMJ, does not involve a grant of unfettered discretion but instead sets forth a legal standard subject to appellate review). 

 

(although Article 66(c), UCMJ, permits a CCA to examine the record in a particular case and dismiss a finding because an accused’s criminality was unreasonably exaggerated by the same acts beings charged multiple ways, that Article does not permit a CCA to disapprove a legally and factually sufficient finding because it believes that the conduct - while falling squarely within the ambit of behavior prohibited by a constitutional criminal statute - should not be criminalized). 

 

(the CCAs can assess the record and determine whether the findings and sentence “should be approved” in the event of error, even if the error did not rise to the level of requiring disapproval of the finding or sentence as a matter of law - for example, in the context of trial and post-trial errors in which doctrines applicable to issues of law ‑ such as waiver - would preclude CCA action in the absence of the “should be approved” language of Article 66(c), UCMJ; a CCA may not, however, disapprove a finding based on pure equity). 

 

(when a CCA acts to disapprove findings that are correct in law and fact, the CCA’s action is accepted on appellate review unless in disapproving the findings, the CCA clearly acted without regard to a legal standard or otherwise abused its discretion; a CCA abuses its discretion when it disapproves a finding based on purely equitable factors or because it simply disagrees that certain conduct - clearly proscribed by an unambiguous statute - should be criminal). 

 

(even though a CCA is not required to identify the basis for its action, failure to do so makes it difficult to determine whether a CCA’s exercise of its Article 66(c), UCMJ, power was made based on a correct view of the law; the better practice, if a CCA sets aside a finding that is correct in law and fact, is for it to explain why the finding is unreasonable, based on a legal standard). 

 

(the failure of the CCA to disclose the legal basis for its decision to set aside a finding of guilty to a child pornography offense required a remand to that court for further review; the CCA appeared to believe it had unfettered discretion to disapprove a finding when it disapproved the finding with the comment that the conduct was not of the sort which warranted criminal prosecution, and it identified no error or other legal rationale with respect to the charge, the specification, the finding, the trial, or the post-trial process that warranted exercise of its unique power under Article 66(c), UCMJ). 

 

(decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA). 


2008 (September Term)

United States v. Schweitzer, 68 M.J. 133 (in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it).


United States v. Matthews, 68 M.J. 29 (the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals). 


United States v. McCracken, 67 M.J. 467 (an appellate court may not affirm an included offense on a theory not presented to the trier of fact). 

 

(a court of criminal appeals may not affirm an Article 134, UCMJ, offense based solely on the charging of an enumerated offense at trial). 


United States v. Miller, 67 M.J. 385 (the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ). 


United States v. Collier, 67 M.J. 347 (the court of criminal appeals erred in concluding that the prejudicial effect of the evidence of a homosexual romantic relationship between the main government witness and appellant outweighed its probative value, where its conclusion was based on speculation about the prejudicial impact unrelated to any specific findings of the military judge; in this case, the military judge made no findings related to potential prejudice to the trial process that could be created by evidence of homosexuality, such as a tendency for members either to disbelieve the witness or to find appellant guilty without a proper basis; in any event, any conclusion that the factfinders would be predisposed against either the government witness or appellant based on a homosexual bias would have been speculative; the CCA inappropriately focused on a generalized and amorphous prejudicial impact of the military’s homosexual policy without identifying who or what would be prejudiced; that policy is not a per se indication of unfair prejudice within the military justice system; and there is no principled reason to prevent an accused from using evidence of a homosexual relationship to potential advantage, particularly where, as here, appellant was the proponent of the evidence of a homosexual relationship with the government’s primary witness). 

United States v. Thompson, 67 M.J. 106 (after finding the evidence of kidnapping factually and legally insufficient because the detention was de minimis, the CCA improperly substituted a conviction to reckless endangerment as an offense closely related to the offense of kidnapping, where a comparison of the elements of the two offenses revealed that a conviction for reckless endangerment required proof of elements that were not included in a specification for kidnapping, and reckless endangerment was not an offense necessarily included in the offense of kidnapping). 


United States v. Mendoza, 67 M.J. 53 (when the action of a convening authority is incomplete, ambiguous, or contains clerical error, a court of criminal appeals may instruct the convening authority who took the action to withdraw the original action and substitute a corrected action). 


United States v. Burch, 67 M.J. 32 (where a clear and unambiguous action is the convening authority’s last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence; the CCA erred in relying on facts and circumstances predating the convening authority’s unambiguous action to find that appellant was not prejudiced). 


2008 (Transition)

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).  

 

(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). 

 

(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 the military justice system, the trial court - the court-martial - does not have independent jurisdiction over a case after the military judge authenticates the record and the convening authority forwards the record after taking action; because the trial court is not available for collateral review under the UCMJ or the MCM, collateral review within the military justice system does not occur at the trial court level). 

 

(the courts of criminal appeals, the first-level standing courts in the military justice system, provide an appropriate forum for consideration of coram nobis petitions regarding courts-martial; during the initial consideration of a case, they engage in de novo consideration of the record and expressly act on the findings and sentence; with respect to collateral review of the present case, they are well-positioned to determine whether corrective action on the findings and sentence is warranted, including ordering any factfinding proceedings that may be necessary). 

 

(when court-martial jurisdiction has been invoked properly at the time of trial, the jurisdiction of the court of criminal appeals to review the case does not depend on whether a person remains in the armed forces at the time of such review). 

 
(the court of criminal appeals is an appropriate forum to receive and consider a writ of coram nobis that involves a collateral challenge to that court’s approval of the findings and sentence in a court-martial, where the court-martial that convicted appellant had jurisdiction over both the person and the offense and the court of criminal appeals had jurisdiction to review and approve the findings and sentence on direct review). 


(the decision of the court of criminal appeals on a writ petition is subject to appellate review). 

 

(appellant’s claim that he received ineffective assistance of counsel in a court-martial proceeding when his counsel told him that he would not face deportation if he pleaded guilty at a special court-martial facially established a sufficient basis for coram nobis review, but a ruling on his petition would be premature without a government response and consideration by the court of criminal appeals as to whether his counsel’s performance was deficient and, if so, whether appellant was prejudiced thereby). 


United States v. Roach, 66 M.J. 410 (appellate review in the courts of criminal appeals embodies the traditional affirmative responsibility of military reviewing authorities to conduct mandatory, de novo review of court-martial proceedings).

 

(proceedings in the courts of criminal appeals differ from civilian appeals in three significant respects; first, review is mandatory; the Judge Advocate General must submit each case of the type at issue in the present appeal to the court unless the accused affirmatively waives the appeal; second, the Judge Advocate General must provide government-furnished appellate counsel to the accused, regardless of indigence, on request of the accused, or when the government is represented on appeal by counsel; third, the scope of review by the courts of criminal appeals differs in significant respect from direct review in the civilian federal appellate courts; 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). 

 

(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 the 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 (in this case, the court of criminal appeals did not affirm a conviction for transporting child pornography in interstate commerce based on a theory of liability not presented to the trier of fact, where the theory relied on by the court that transportation occurred when appellant downloaded child pornography using the file sharing program, KaZaA, thereby causing an upload on the host user’s computer, was one of the alternative theories presented by the government at trial, not a different one). 


United States v. Upham, 66 M.J. 83 (a court of criminal appeals may approve a conviction for a lesser included offense even though both parties waived an instruction on the lesser offense and the military judge did not instruct the members on the lesser offense, where evidence was presented and evaluated on the greater offense).  

 

United States v. Melson, 66 M.J. 346 (after finding that the accused had raised an allegation of ineffective assistance of counsel and overcome the presumption of competence with an affidavit raising a claim of illegal pretrial punishment, the CCA erred in not affording the government an opportunity to submit a statement or affidavit from the accused’s defense counsel to rebut the allegations). 

 

(where the CCA finds that allegations of ineffective assistance and the record contain evidence which, if unrebutted, would overcome the presumption of competence and there is no affidavit from defense counsel in the record addressing those allegations, that court is required to obtain a response from trial defense counsel in order to properly evaluate the allegations).

 

United States v. Rodriguez, 66 M.J. 201 (so long as the factfinder entered a general verdict of guilty to a “on divers occasions” specification without exception, any one of the individual acts may be affirmed by the CCA as part of its Article 66, UCMJ, review). 

 

(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; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment; the presumption is similarly applicable where an “on divers occasions” general verdict is modified on appeal to a single act).


United States v. Perez, 66 M.J. 164 (the court of criminal appeals has an independent responsibility to affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved).


(in this case, where the convening authority modified the findings of guilty to disobeying an order, rape, and assault consummated by a battery, by dismissing the charge and specification for rape, and approved that portion of the sentence providing for a bad-conduct discharge, confinement for 206 days, and reduction to the lowest enlisted grade, the action taken by the court of criminal appeals on appellate review in affirming the findings, as modified by the convening authority, and in approving that portion of the sentence that provided for confinement for six months and reduction to the lowest enlisted grade was within the power granted to it by Article 66(c), UCMJ).


United States v. Parrish, 65 M.J. 361 (Article 66(c), UCMJ, does not authorize a court of criminal appeals to decide disputed questions of material fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; rather, the record of trial must be expanded through an evidentiary hearing conducted in accordance with United States v. DuBay, 17 CMA 147, 37 CMR 411 (1967)).

 

(in United States v. Ginn, 47 MJ 236, a number of factors are set forth under which a post-trial evidentiary hearing is not required to decide disputed questions of material fact pertaining to a post-trial claim resulting from conflicting affidavits submitted by the parties; the fourth Ginn factor precludes the need for a DuBay hearing when the appellate filings and the record as a whole compellingly demonstrate the improbability of appellant’s assertions).

 

(the court of criminal appeals erred in resolving the issue as to whether a material term of the pretrial agreement included deferral of the adjudged reduction in grade without a post-trial evidentiary hearing; although the appellate filings together with the record as a whole compellingly demonstrated the improbability of a sub rosa agreement to defer reduction in grade, that conclusion did not address the actual allegation in appellant’s affidavit that he and his wife had been misinformed by both defense counsel and trial counsel as to whether the pretrial agreement deferred the reduction and the possibility that appellant and the government shared a mutual misunderstanding as to the terms of the agreement; confusion, inconsistency, and factual gaps pervade the appellate filings and raise questions as to their reliability, accuracy, and completeness; the record does not support a conclusion that the improbability of appellant’s actual assertions was compellingly demonstrated under the fourth Ginn factor; in addition, the other Ginn factors which would allow resolution without a post-trial evidentiary hearing were not applicable here; under these circumstances, resolution of the issue required factfinding:  to develop the full factual scenario underlying appellant’s claim that he and his wife were misinformed by both defense counsel and trial counsel as to the effect of the written pretrial agreement on his pay; to consider, if applicable, whether deferment of reduction in grade was material to appellant’s decision to enter a guilty plea; and to uncover whether prejudicial legal errors occurred; in this context, remand to the court of criminal appeals for a DuBay hearing was necessary). 


2007


United States v. Harrow, 65 M.J. 190 (the CCA erred when, after finding a plea to one offense improvident, it reassessed the sentence to include a reduction to E-1 when such reduction was not adjudged at trial). 


United States v. Pflueger, 65 M.J. 127 (when a punitive separation is approved by the convening authority, the case is reviewed by the appropriate CCA under Article 66).

United States v. Wilson, 65 M.J. 140 (a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; because the convening authority in this case did not approve the dishonorable discharge, it was not before the lower court on review and that portion of the adjudged sentence could not be affirmed; for the lower court to do so constituted error).  


United States v. Beatty, 64 M.J. 456 (in enacting the UCMJ, Congress saw fit to give the courts of criminal appeals very broad powers with respect to the approved findings and sentences of courts-martial; in a case referred to it, the court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; it may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; in considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses). 


(courts of criminal appeals are intermediate appellate judicial tribunals, with an awesome, plenary de novo power of review that grants unto the court authority to substitute its judgment for that of the military judge and for that of the court members; a court of criminal appeals may not affirm the findings and sentence of a court-martial unless it finds them to be both factually and legally sufficient). 


(the judges of the courts of criminal appeals, as senior judge advocates, are presumed to know and correctly apply the law; the Court of Appeals for the Armed Forces will impute no intent to engage in fundamental unfairness or rely upon off-limits tactics to the courts of criminal appeals). 


(both legal and factual sufficiency are matters for courts of criminal appeals to consider de novo). 


United States v. Simon, 64 M.J. 205 (the CCA has two distinct responsibilities in addressing appellate delay; first, the court may grant relief for excessive post-trial delay under its broad authority to determine sentence appropriateness under Article 66(c), UCMJ; second, as a matter of law, the court reviews claims of untimely review and appeal under the Due Process Clause of the Constitution). 


(it is appropriate for the CCA to conduct a new review under Article 66(c), UCMJ, where (1) extensive post-trial delays raise substantial questions under both a sentence appropriateness and due process analysis, (2) the initial appellate defense counsel did not assign any errors, (3) the unrebutted record on appeal indicates that counsel had no contact with appellant while the case was pending before the CCA, and (4) the unrebutted record indicates that appellant suffered from a significant mental health condition). 


2006

 

United States v. Lane, 64 M.J. 1 (the assignment of a Member of Congress to be a judge on the Air Force Court of Criminal Appeals violated the Incompatibility Clause of the Constitution; as a result, the panel of the court of criminal appeals was not properly constituted; only a properly constituted appellate panel can complete the review required by Article 66, UCMJ; therefore, the unconstitutional assignment invalidated the lower court’s proceedings and decision).


United States v. Gosser, 64 M.J. 93 (when there is surrounding documentation conflicting with the language of the convening authority’s action, this conflict presents an ambiguity that must be addressed; when addressing situations that present an ambiguity, the proper course of action is to remand for corrective action under RCM 1107(g); RCM 1107(g) empowers an authority acting under Article 66, UCMJ, to instruct a convening authority to issue a corrective action upon a showing of ambiguity; in this case, an ambiguity regarding whether the adjudged bad-conduct discharge had been disapproved, created by a conflict between the convening authority’s action and the surrounding documentation, warranted a remand by the court of criminal appeals to the convening authority for corrective action).


United States v. Ord, 63 M.J. 279 (when the convening authority does not act expressly on the findings, and the SJA’s recommendation omits a finding of guilty adjudged by the court-martial, the court of criminal appeals may not presume that the convening authority approved the omitted finding; in such a case, the court may return the record for a new SJA’s recommendation and convening authority’s action). 

United States v. Alexander, 63 M.J. 269 (a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including: (1) every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; (2) every case involving an approved death sentence; and (3) any other case submitted to the court of criminal appeals by the Judge Advocate General under Article 69(d)).


(under Article 66(c), UCMJ, a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; the focus on findings approved by the convening authority contemplates that the findings must be endorsed or ratified by the convening authority). 


(the relationship between the Article 66(c), UCMJ, requirement for approval of the findings and the Article 60(c)(3), UCMJ, statement that action on the findings is not required reflects the competing goals served by the legislation governing the convening authority’s role on findings; under the UCMJ as originally enacted in 1950, the convening authority served in a judicial role, performing a first-level legal review of findings and sentence; as the role of judges at the trial and appellate levels increased over time, particularly after enactment of the Military Justice Act of 1968, Congress reexamined the requirement for a full legal review of the findings and sentence at the convening authority level; in the Military Justice Act of 1983, Congress removed the requirement for the convening authority to conduct a legal review or otherwise act as an appellate tribunal, while retaining the convening authority’s power to modify the findings and sentence as a matter of command prerogative; as part of the legislation, Congress specifically stated in Article 60(c)(3), UCMJ, that the convening authority was not required to act on the findings; the approval requirement of Article 66(c), UCMJ, has been interpreted in a manner consistent with the congressional goal of reducing the post-trial judicial responsibilities of the convening authority).


(if the convening authority expressly acts to approve, disapprove, or modify particular findings of the court-martial, the result of the convening authority’s action constitutes the approved findings reviewed by the court of criminal appeals under Article 66(c), UCMJ). 

(when the convening authority’s action only addresses the sentence, and does not mention the findings, the court of criminal appeals may presume that the convening authority approved the findings reached by the court-martial and reported in the SJA’s post-trial recommendation, absent material evidence to the contrary). 


(if the list of findings in the SJA’s post-trial recommendation omits any reference to a particular finding, the court of criminal appeals may not presume that the convening authority implicitly approved or disapproved the omitted finding; in such a case, the court must return the case for a new SJA’s review and convening authority’s action unless the court determines that the affected finding should be disapproved at the appellate level in the interest of efficient administration of justice). 


United States v. Moreno, 63 M.J. 129 (the timely management and disposition of cases docketed at the courts of criminal appeals is a responsibility of the courts of criminal appeals). 


United States v. Politte, 63 M.J. 24 (regarding post-trial matters, Courts of Criminal Appeals have jurisdiction to refrain from addressing the merits of a case, and instead return an action to the convening authority if further clarification of the meaning of the action is necessary). 


(because of the importance of the convening authority’s action in the court-martial process, appellate courts require a clear and unambiguous convening authority’s action; in this case, where the convening authority’s action was ambiguous, the lower court erred by failing to identify this ambiguity and return the action to the convening authority for clarification). 


(RCM 1107(g) permits an authority acting under Article 64, 66, 67, or 69 to instruct a convening authority to withdraw an original action and substitute a corrected action where the original action is incomplete, ambiguous, or contains clerical error).

 

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).


United States v. Roderick, 62 M.J. 425 (a court of criminal appeals is constrained by the bounds of the record from the court below when reviewing an appellant’s guilt or innocence for legal or factual sufficiency; similarly, a court of criminal appeals is precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c)). 


(where the military judge admitted evidence only for a limited purpose with respect to certain specifications, it was error for the court of criminal appeals to consider that evidence with respect to other specifications).


United States v. Gaston, 62 M.J. 404 (a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; in this case, the action of the Court of Criminal Appeals in imposing forfeitures greater than those approved by the convening authority improperly increased the accused’s sentence in violation of Article 66(c)). 

 

United States v. Cendejas, 62 M.J. 334 (in appropriate situations, the government may use the images of alleged child pornography themselves to make the showing that they are of actual children; an accused is then entitled to confront the government’s evidence and present his own evidence that the images are not actual; in this case, the military judge’s ruling upholding an unconstitutional definition of child pornography from the Child Pornography Prevention Act relieved the government of its obligation to prove that the images were of actual children beyond a reasonable doubt in an evidentiary proceeding; that ruling, in turn, removed any opportunity for the accused to present a defense based on the virtual constitutionally-protected nature of the images; in determining that it could make its own factual review of the images, the court of criminal appeals failed to recognize that since the issue of virtual versus actual was not litigated at the trial level, its action resulted in the accused’s conviction being upheld on a theory that the accused did not have the opportunity to defend against; because this action of the court of criminal appeals deprived the accused of the opportunity to confront the government’s evidence on the issue of whether the images were of actual or virtual children and to present evidence on his behalf that the images were virtual, the accused’s due process rights were violated; this error is not harmless beyond a reasonable doubt because with the proper opportunity to present evidence in his defense, the accused might have raised a question in the military judge’s mind about the origin of the images).

United States v. Ribaudo, 62 M.J. 286 (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). 


(review by a court of criminal appeals pursuant to Article 66, UCMJ, is an appeal of right; the general rule favors abatement ab initio pending an appeal of right; it is the longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him; it is not until that appeal of right is complete that the interests of justice have been served).


(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).


2005


United States v. Scheurer, 62 M.J. 100 (the mature and experienced judges who serve on the courts of criminal appeals are presumed to know and apply the law correctly; despite appellant’s allegation that the court of criminal appeals improperly considered statements by appellant’s wife that incriminated herself alone, the court’s opinion contains no hint that it used this evidence inconsistently with the limiting instruction given by the trial judge; in the absence of any indication to the contrary, it is presumed that the court considered this evidence only for the purposes permitted by the limiting instruction).
 

United States v. Forbes, 61 M.J. 354 (in this case, despite its resolution of the appeal on an instructional issue, the court of criminal appeals did not err by evaluating the legal and factual sufficiency of the evidence of guilt; while there may be good reasons in a particular case for an intermediate appellate court to focus only on case-dispositive issues, the court is not precluded from offering alternative holdings; in the present case, the court of criminal appeals might have wanted the CAAF to know that it had performed its responsibility under Article 66(c) to weigh the legal and factual sufficiency of the evidence in the event that the CAAF were to disagree with its decision on the instructional issue).

United States v. Gorence, 61 M.J. 171 (in finding an alternative foundational basis for the government’s rebuttal evidence considered by the military judge at sentencing on the issue of rehabilitation, the court of criminal appeals did not improperly conduct its appellate review by resurrecting excluded evidence).

 

United States v. Augspurger, 61 M.J. 189 (a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty). 

 

United States v. Leak, 61 M.J. 234 (considering the principles behind the Double Jeopardy Clause and precedent, a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level). 

 

(Congress intended a court of criminal appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court; a court of criminal appeals is more akin to a district court entering its judgment of acquittal pursuant to Fed. R. Crim P. 29 than it is to a trial jury; in such a case, under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no necessity for another trial, i.e., only where the jury has returned a verdict of guilty; in the military justice system, at the time a court of criminal appeals makes a determination of factual insufficiency, a guilty finding will necessarily have been returned by a court-martial).

 

United States v. Dooley, 61 M.J. 258 (the CCA erred in reversing the military judge’s decision to dismiss appellant’s case with prejudice for an RCM 707 speedy trial violation where the military judge did not abuse his discretion; the military judge’s factual findings were not clearly erroneous, and the military judge’s decision in applying the RCM 707 speedy trial factors was not influenced by an incorrect view of the law; the CCA erred by performing a de novo review of the facts and circumstances that led to the dismissal).

United States v. Bodkins, 60 MJ 322 (where the post-trial processing of a case is unreasonable, unexplained, and dilatory, the court of criminal appeals erred in asserting that the defense was required to ask for timely processing, and that failure to do so waived any right to relief). 

 

(under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), the court of criminal appeals has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay, and a finding of specific prejudice is not required; the court has discretion to take into account the impact -- or lack thereof -- of any delay on the accused; in so doing, the court may consider the absence of a defense request for action as one factor among other considerations in assessing the impact of delay in a particular case, but it may not elevate that factor into the conclusive basis for denying relief by using the mere absence of a request to find waiver). 

 

(the court of criminal appeals may rely upon continuing eligibility for limited military benefits as a factor in assessing the impact of post-trial delay, but it must do so in a manner that focuses on the circumstances of the particular case; because post-trial processing entails continuing eligibility for benefits in all cases, it is not appropriate to rely on the availability of benefits as a basis for denying relief in a particular case without relating it to the circumstances of the accused in that case).

 

Walker v. United States, 60 MJ 354 (under typical circumstances, the deficiency resulting from lack of a quorum a panel of a CCA can be readily rectified by its chief judge; under Article 66(a), UCMJ, the chief judge can fill panel vacancies by assigning non-disqualified judges to sit; also, if the court as a whole does not have a sufficient number of non-disqualified judges to fill the panel, the JAG can appoint additional judges for service on the court, and the chief judge then can fill the panel with non-disqualified judges under Article 66(a)).

 

(Article 66(a), UCMJ, governs the composition of the CCAs and assigns a distinct set of responsibilities to the JAG and to the chief judge of the CCA; the Article requires each JAG to establish a CCA composed of one or more panels, each of which shall be composed of not less than three appellate military judges; it also requires the JAG to designate as chief judge one of the appellate military judges of the CCA; once the court is established and the chief judge is designated, responsibility for assignment of judges within the court is vested by the Article in the chief judge; the chief judge determines on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel; this Article reflects a determination by Congress to create a degree of separation between the JAG and internal assignments within the court).

 

(Article 66(a), UCMJ, does not provide expressly for a CCA judge to perform the duties of the chief judge when the chief judge is absent or recused; the joint rules for the CCAs, promulgated under Article 66(f), are likewise silent on this matter). 

 

(recusal of a judge in the event of a conflict of interest is a critical element in assuring public confidence in the fairness of the administration of justice; while courts typically have either statutory or internal procedures to designate an acting chief judge when the chief judge is recused, the absence of such a procedure does not preclude an appropriate authority from ensuring the continuity of a court’s operations in the event of the chief judge’s recusal).

 

(when action by the chief judge is required in a case or series of cases from which the chief judge is recused, the functions of the chief judge must be performed by another official because the CCA would otherwise be brought to a halt; Article 66(a), UCMJ, reflects a congressional preference for a division of responsibilities between the JAG and the chief judge of the CCA; this preference is best furthered by concluding: (1) that the JAG may perform the function assigned to that officer under Article 66(a) -- designating an appellate military judge as chief judge -- for a particular case or cases to fill the void caused by the recusal of the regularly serving chief judge; and (2) that the person serving as chief judge for a case or series of cases may perform in those cases the function assigned to the chief judge under Article 66(a) -- assigning judges to serve on the panel or panels that will hear those cases).

           

(when a judge is recused, that judge should not take action to influence the appointment of his or her replacement; a chief judge is not necessarily disabled from issuing generally applicable rules that affect a wide range of cases before the court, even if the rule happens to apply to a case in which the chief judge is recused; if, however, the rule will be applied only in that case or a readily identifiable set of cases in which the chief judge is recused, the rule must be drafted or applied in a manner that preserves the effect of the recusal; otherwise, the recusal will not serve the function of Canon 2A of the ABA’s Model Code of Judicial Conduct with respect to promoting public confidence in the integrity and impartiality of the judiciary).

 

(in this case, reliance on a chief judge’s succession policy to select an acting chief judge was impermissible under the circumstances where the chief judge, who had recused himself from the case and whose recusal remained in place, promulgated that policy in the midst of the litigation from which he was recused, and the impact on that litigation was readily identifiable). 

 

(a court of criminal appeals may not resurrect excluded evidence during appellate review under Article 66(c), UCMJ).


2004


United States v. Jenkins, 60 MJ 27 (Article 66 provides the statutory underpinning for the service Courts of Criminal Appeal; the legislative history makes it clear that Congress intended the CCAs to serve as appellate bodies independent of the Judge Advocate Generals and Government appellate attorneys; the CCAs are intended to not only uphold the law, but provide a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility; for this reason, Congress endowed the CCAs with authority to find facts as well as address questions of law; as this Court has often noted, such authority is awesome, including as it does broad factfinding power and plenary de novo power to review questions of law). 

 

(the CCA opinion in appellant’s case is 15 pages in length; it consists of 45 paragraphs, not including record excerpts; thirty-one of these paragraphs are taken virtually or wholly verbatim from 29 of the 33 paragraphs in the Government’s nineteen-page Answer before the CCA; this is done without attribution; these paragraphs include the statement of facts, legal analysis, and conclusions of law; after reviewing the CCA’s opinion, we are left in doubt that Appellant received the independent Article 66(c) review to which he was entitled).

 

(in the Article 66(c) context, replication of a party’s brief by the CCA in its opinion disguises the nature and substance of the court’s independent factual and legal review; as a result, neither we nor the parties can be sure where and perhaps whether the Government’s argument ends and the lower court’s independent analysis begins; this conclusion is not based on a mathematical calculation of replication; nor need we look within the lower court’s deliberations to make such a determination; it is based on the manifest demonstration on the face of the CCA’s opinion that substantial portions are derived wholly or virtually verbatim from a party’s brief; we note that “substantial” conveys both qualitative and quantitative meaning; thus, an Article 66(c) error based on the copying of a party’s brief may be rooted in the replication of certain important or contested facts, crucial legal analysis, legal conclusions, or some combination thereof, as well as the volume of material copied; such judgments are case contextual; however, assuredly an original opinion manifesting independent analysis negates need for review for an Article 66(c) error based on the copying of a party’s brief). 

 
(the CCA’s opinion in this case replicates large portions of the statement of facts, analysis, and conclusions of law from the Government’s Answer; on such a record we cannot disaggregate the Government’s argument from the CCA’s review; therefore, we cannot determine that appellant received the awesome, plenary, and de novo review to which he was entitled by law; in short, the fact that appellant received some of what he was entitled to does not mean that he received all to which he was entitled; the lower court’s opinion indicates that he did not).  

 

United States v. Toohey, 60 MJ 100 (the Courts of Criminal Appeals possess broad powers; they may issue relief upon a finding that lengthy delay following a court-martial conviction renders some portion of the findings or sentence inappropriate; even if it finds that the delay does not rise to the level of a prejudicial error of law, the Court of Criminal Appeals has the authority to nevertheless conclude that some form of relief is appropriate).

 

United States v. Gore, 60 MJ 178 (Article 62(b), UCMJ, states that in ruling on a government appeal, the court of criminal appeals may act only with respect to matters of law, notwithstanding Article 66(c), UCMJ; when a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record; to give due deference to the trial bench, a determination of fact should not be disturbed unless it is unsupported by the evidence of record or was clearly erroneous).

 

(on matters of fact with respect to a Government appeal under Article 62, UCMJ, both the Court of Appeals for the Armed Forces and the court of criminal appeals are in the same position--bound by the military judge's factual determinations unless they are unsupported by the record or clearly erroneous; neither court has authority to find facts in addition to those found by the military judge).

United States v. Gilley, 59 MJ 245, (we hold that Air Force Court of Criminal Appeals Rule (AFCCA Rule) 2.2, which requires counsel to submit briefs for a remanded case within seven days, which is less than the 60 days prescribed by Courts of Criminal Appeals Rule of Practice and Procedure (CCA Rule) 15, is invalid). 

 

(Article 66(f), UCMJ, does not permit an individual Court of Criminal Appeals to create its own exclusive filing deadline which varies from the general filing deadline put forth in the uniform CCA rules).

 

(we interpret Article 66(f), UCMJ, to require identical rules among all Courts of Criminal Appeals regarding any course of action an appellant may take in a case before such court – which includes filing a brief; Article 66(f) therefore requires the Courts of Criminal Appeals to enforce identical deadlines for filing briefs; in this vein, CCA Rule 15 provides one deadline for the filing of any brief before all Courts of Criminal Appeals; because the seven-day deadline for filing briefs in cases on remand under AFCCA Rule 2.2 varies from the 60-day timeline in the uniform rule, it is invalid). 

 

(CCA Rule 26 authorizes the Courts of Criminal Appeals to create internal court rules; that is, the rule authorizes the Courts of Criminal Appeals to create rules applying to entities existing or situated within each court’s limits; by contrast, a rule governing filings or briefs, such as AFCCA Rule 2.2, applies to entities external to the court, i.e., the parties; moreover, an internal rule created under CCA Rule 26 logically cannot conflict with a uniform rule of procedure already adopted by the Judge Advocates General; indeed, a subject deemed appropriate by the Judge Advocates General for a uniform rule cannot also be an appropriate subject for a different, internal rule; because AFCCA Rule 2.2 applies to external, not internal, entities, and because it logically conflicts with the uniform guidance of CCA Rule 15, it is outside the scope of CCA Rule 26).

2003
 
United States v. Holt, 58 MJ 227 (Article 66(c) limits the Courts of Criminal Appeals to a review of the facts, testimony, and evidence presented at the trial, and precludes the Court of Criminal Appeals from considering extra-record matters when making determinations of guilt, innocence, and sentence appropriateness).

(the Courts of Criminal Appeals are precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c)).

(rather than limiting itself to reviewing the propriety of the military judge’s trial determinations, the court below changed the evidentiary nature of certain prosecution exhibits by holding that the exhibits were admissible under specified exceptions to the hearsay rule; the exhibits were elevated to exhibits admitted for the truth of the matter asserted; the effect of this action was to enhance the aggravating nature of this sentencing evidence and to modify the qualitative evidentiary content of the record of trial; the truth of the matter asserted, which had been excluded at trial, became part of the record evidence; this was error; the Court of Criminal Appeals may not resurrect excluded evidence during appellate review under Article 66(c)).

(in reviewing guilt, evidence excluded in a trial forum cannot be considered on appeal to affirm guilt; the same limitation applies to the Court of Criminal Appeals when that court acts pursuant to the statutory mandate to affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact; the legal review of the sentence is limited to the facts, testimony, and evidence presented at trial; the court below erred when it altered the evidentiary quality of certain prosecution exhibits, and then proceeded to review the appellant’s sentence; 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).

United States v. Rorie, 58 MJ 399 (because an appeal to the Courts of Criminal Appeals is an appeal of right, CAAF leaves to those courts or the Judge Advocates General to establish the parameters of a policy of abatement in the event that an appellant dies pending review at a Court of Criminal Appeals).

United States v. Walters, 58 MJ 391 (the Courts of Criminal Appeals' appellate review authority flows from Article 66(c), not the common law; while there are instances in military law where common law principles are applicable, the "center of gravity" for the Courts of Criminal Appeals is their statutory review function under Article 66(c)).

2002

United States v. Stoneman, 57 MJ 35 (Congress intended the Courts of Criminal Appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court).

United States v. Campbell, 57 MJ 134 (a Court of Criminal Appeals has discretion to determine how additional evidence, when required, will be obtained, e.g., by affidavits, interrogatories, or a factfinding hearing; such determinations are necessarily contextual and not generally conducive to a single solution, and a Court of Criminal Appeals may conclude in some instances, such as where there is the need to discover particular facts, that a DuBay evidentiary hearing may be necessary).

United States v. Butcher, 56 MJ 87 (on appeal, the issue of unreasonable multiplication of charges involves the duty of the Courts of Criminal Appeals to "affirm only such findings of guilty, and the sentence . . . as it . . . determines, on the basis of the entire record, should be approved." Art. 66(c), UCMJ).

(highly discretionary power of the Courts of Criminal Appeals to deal with claims of unreasonable multiplication of charges includes the power to determine that a claim of unreasonable multiplication of charges has been waived or forfeited when not raised at trial).

United States v. Tardif, 57 MJ 219 (a Court of Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC § 866(c), to grant appropriate relief for unreasonable and unexplained post-trial delays; this authority under Article 66(c) is distinct from the court’s authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn a finding or sentence “on the ground of an error of law”; and the court’s authority to grant relief under Article 66(c) does not require a predicate holding under Article 59(a) that the error materially prejudices the substantial rights of the accused).

(a Court of Criminal Appeals has broad authority under Article 66(c) to review and modify sentences).

(the power and duty of a Court of Criminal Appeals to review sentence appropriateness under Article 66(c) is separate and distinct from its power and duty to review a sentence for legality under Article 59(a); Articles 59(a) and 66(c) “bracket” the authority of a Court of Criminal Appeals:  Article 59(a) constrains the authority to reverse on the ground of an error of law; Article 66(c) is a broader, three-pronged constraint on the court’s authority to affirm).

(before it may affirm, the Court of Criminal Appeals must be satisfied that the findings and sentence are (1) “correct in law,” and (2) “correct in fact,” and which it “determines, on the basis of the entire record, should be approved” - the first prong pertains to errors of law and, as such, it also implicates Article 59(a); the second and third prongs do not involve errors of law and, thus, do not implicate Article 59(a)).

(Court of Criminal Appeals has authority under Article 66(c) to grant relief for excessive post-trial delay without a showing of “actual prejudice” within the meaning of Article 59(a), if it deems relief appropriate under the circumstances).

(in addition to its determination that no legal error occurred within the meaning of Article 59(a), the Court of Criminal Appeals is required to determine what findings and sentence “should be approved,” based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay).

(the Courts of Criminal Appeals have authority under Article 66(c) to tailor an appropriate remedy, if any is warranted, to the circumstances of cases involving unreasonable, unexplained post-trial delays).

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. Douglas, 56 MJ 168 (Court of Criminal appeals did not abuse its discretion in denying a motion for an extension of time where:  (1) the motion contained nothing more than a vague allegation that appellant wished to raise other issues and that appellant had not been able to discuss those issues with appellate counsel; (2) the motion did not identify those issues with specificity; and (3) there was no explanation why the issues were not raised in appellant’s original pleading).

(Court of Criminal Appeals did not abuse its discretion in denying a motion for reconsideration where:  (1) new appellate defense counsel had ample time to communicate with appellant, gain a sufficient understanding of the issues, and prepare an appropriate filing for the court; (2) the motion for reconsideration was as vague as appellant’s initial motion for extension; (3) the motion did not articulate specific issues under United States v. Grostefon, 12 MJ 431 (CMA 1982); and (4) the motion did not present a colorable claim that appellant’s right under Grostefon was not being protected).


2001

United States v. Riley, 55 MJ 185 (a decision of the Court of Criminal Appeals setting aside a greater offense and affirming only a lesser-included offense effectively acquits that appellant of the greater offense; on further review, the appellant is entitled to plead double jeopardy against any attempt of the Court of Criminal Appeals to reinstate and affirm the conviction of the greater offense).

(Article 66(c) gives the Courts of Criminal Appeals factfinding power, and Congress intended to give an accused a de novo proceeding on the merits and to empower the Courts of Criminal Appeals to acquit an accused).

(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).

(under Rule 19(a) of the uniform rules of procedure for the Courts of Criminal Appeals, once an appellant files a petition for grant of review with the Court of Appeals for the Armed Forces, the Court of Criminal Appeals no longer has authority to reconsider its findings of fact).

United States v. Hurn, 55 MJ 446 (the Courts of Criminal Appeals have broad factfinding powers, but Congress intended a Court of Criminal Appeals to act as factfinder in an appellate-review capacity only after a trial court made findings based on its consideration of the evidence, and not in the first instance as a trial court).

United States v. Lee, 54 MJ 285 (Rule 4(a) of the Courts of Criminal Appeals Rules of Practice and Procedure, promulgated pursuant to Article 66(f), UCMJ, provides that “[w]hen sitting in panel, a majority of the judges assigned to that panel constitutes a quorum for the purpose of hearing or determining any matter referred to the panel”; this rule allows a panel of two out of three assigned judges to operate by quorum.).

2000

United States v. Reed
, 54 MJ 37 (while good military character may be sufficient to create a reasonable doubt, there is nothing which requires a Court of Criminal Appeals to make a finding that such evidence is not cogent or irresistible in reviewing a case under Article 66).

(information from the Article 32 investigation, not otherwise admitted into evidence during the trial itself, is matter from outside the record and may not be considered in evaluating guilt under Article 66).

United States v. Armstrong, 54 MJ 51 (although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ).

(when a Court of Criminal Appeals reviews a military judge’s rulings, it has the awesome plenary, de novo power of review to substitute its judgment for that of the military judge).

(where the Court of Criminal Appeals could not determine from the record whether the military judge tested a challenged member for implied bias, the Court of Criminal Appeals was empowered to make its own judgment if it believed that implied bias warranted granting the challenge for cause).

United States v. Scalarone, 54 MJ 114 (Court of Criminal Appeals did not err in following decision of Court of Appeals for the Armed Forces where neither the Supreme Court nor the Court of Appeals for the Armed Forces had overruled the decision, nor had there been any subsequent change in the law affecting that decision).

United States v. Lynn, 54 MJ 202 (Title 29 USC § 455, concerning disqualification of judges, applies to the judges of the Courts of Criminal Appeals; in determining whether a judge of the Court of Criminal Appeals should disqualify himself, the test is whether a reasonable person who knew all the facts might question these appellate military judges’ impartiality).

United States v. Eversole, 53 MJ 132 (a Court of Criminal Appeals has the jurisdiction, authority, and expertise to reassess court-martial sentences, even after dismissing charges).

1999

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, the Court of Criminal Appeals was not in a position to resolve the controverted issue without a prior evidentiary hearing; Court of Criminal Appeals is not authorized to decide disputed questions of fact pertaining to post-trial claims, solely or in part on the basis of conflicting affidavits submitted by the parties).

United States v. Henderson, 52 MJ 14 (a panel of the Court of Criminal Appeals may reconsider and set aside its own decision without the necessity of having the initial decision reconsidered by the court sitting as a whole; this procedure for reconsideration by a panel of the court is not contrary to Article 66(a), UCMJ, is consistent with the uniform rules of procedure prescribed by the Judge Advocates General, and is recognized by judicial decision).

(Court of Criminal Appeals did not erroneously shift the burden by indicating that the prosecution had no burden to disprove heat of passion and adequate provocation; rather, court found, relying on its factfinding powers, that the provocation itself was insufficient to undermine finding of guilty of unpremeditated murder).

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 is not required to explain its decision to reassess punishment rather than order a rehearing; thus, Court of Appeals for Armed Forces will not weigh adequacy of any explanation that was provided).

United States v. Gibson
, 51 MJ 198 (Courts of Criminal Appeals have a broad grant of appellate authority under Article 66(c), UCMJ, to do justice, and if that court, in the interests of justice, determines that a certain finding or sentence should not be approved – by reason of receipt of improper testimony or otherwise – the court need not approve such finding or sentence).

(Court of Criminal Appeals did not abuse the discretion conferred upon that court by Article 66(c), UCMJ, by setting aside the findings of guilty based upon a finding of ineffective assistance of counsel, rather than affirming lesser-included offense where:  (1) proof of lesser-included offense depended almost entirely on victim’s credibility, the very matter about which counsel was found to be ineffective; and (2) corroborating scientific evidence was of marginal independent value absent the testimony of the victim).

United States v. Finster, 51 MJ 185 (Court of Criminal Appeals:  (1) may address prejudicial errors on its own motion and is not limited to the matters, if any, discussed in a submission to that court; (2) may review the record and reach their own independent conclusion as to whether findings and sentence should be affirmed as correct in law and fact; (3) is not prohibited by Article 66(c) or Article 59(a) from identifying prejudicial error without regard to the nature or quality of the accused’s submission on appeal; and, (4) has broad discretion to determine whether an error is harmless, whether corrective action should be taken by the Court of Criminal Appeals, or whether the case should be returned to the convening authority).

(where the SJA recommendation was prepared by an unqualified enlisted person, the prejudicial impact of the error was manifest, so the Court of Criminal Appeals’ order for a new post-trial action falls well within that court’s broad discretion to determine whether an error is harmless, whether corrective action should be taken by the Court of Criminal Appeals, or whether the case should be returned to the convening authority).

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).

United States v. Gray, 51 MJ 1 (claim that Courts of Military Review (now Courts of Criminal Appeals) lack jurisdiction or authority to review the constitutionality of the Rules for Courts-Martial and the Uniform Code of Military Justice rejected; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

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).

United States v. Stuart, 50 MJ 72 (Article 66(c), UCMJ, vests sufficient authority in the Courts of Criminal Appeals to determine that remedial action is necessary when, in a case involving confinement for life, there is a dispute concerning defense counsel’s failure to contact his client before submitting clemency matters).

United States v. Acevedo, 50 MJ 169 (as a general rule regarding appellate practice, an evenly divided vote on a question of law results in affirmance of a lower court’s decision; thus, evenly divided vote on interpretation of pretrial agreement, a matter of law, resulted in affirmance of the adjudged and approved sentence by the Court of Criminal Appeals).

United States v. Hall, 50 MJ 247 (it is proper for the Courts of Criminal Appeals to examine an underlying issue and determine that charges and evidence are not tainted).

Steele v. Van Riper, 50 MJ 89 (issuance of an administrative discharge after trial does not negate the power of the Courts of Criminal Appeals to act on the findings and sentence).

United States v. Mitchell, 50 MJ 79 (where the effect of an action by a Service Secretary, which may moot an issue, primarily involves service regulations and practices, it should be addressed first by the service Court of Criminal Appeals which can bring special expertise to bear on service regulatory matters).

United States v. Fee, 50 MJ 290 (responsibility for determining sentence appropriateness is vested by Article 66(c) in the Courts of Criminal Appeals).

United States v. Lacy, 50 MJ 286 (the power to review cases for sentence appropriateness is vested in the Courts of Criminal Appeals and their statutory discretion to determine whether a sentence “should be approved” under Article 66(c), UCMJ).

(in exercising discretionary authority to review sentence, Courts of Criminal Appeals are not required to engage in sentence comparison except in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).

United States v. Noble, 50 MJ 293 (sentence review function of the Courts of Criminal Appeals does not require sentence comparison with other specific cases except in rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).

(an appellant may bring to the attention of the Courts of Criminal Appeals other cases with differing dispositions, even though not raising legal issues, for such consideration as the judges of the Courts of Criminal Appeals may deem appropriate).

(Court of Criminal Appeals did not abuse its discretion by pointing to serious charges of which appellant was acquitted in order to describe the basis for the command’s decision to dispose of appellant’s case by court-martial while permitting administrative discharge in another related case with less serious potential charges).


Factual sufficiency:

2011 (September Term)

United States v. Stewart, 71 M.J. 38 (among other protections, the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; this principle prohibits a reviewing court from rehearing any incidents for which the accused was found not guilty; consistent with this double jeopardy principle, the CCA may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial). 

(in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence, the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error). 

2009 (September Term)


United States v. Ross, 68 M.J. 415 (if the record does not indicate which of the alleged incidents forms the basis of the conviction, the resulting ambiguous findings, along with double-jeopardy principles, bar the CCA from performing its usual factual-sufficiency review). 

 

(where appellant was charged with possession of child pornography on divers occasions during a particular time period and the military judge excepted from the specification the words “on divers occasions” without further explanation, the findings were ambiguous; although excepting those words without explanation created ambiguous findings, the government could nevertheless prevail if the evidence was legally insufficient to show that appellant was guilty of possession with respect to two of the three seized electronic storage media; under those circumstances, as a matter of law, the military judge could have found appellant guilty of possession with respect to only one of the media - in other words, the verdict would be unambiguous; but here, where the evidence was legally sufficient with respect to the presence of child pornography on two of the storage media, the fact remains that an appellate court could not know what the military judge found appellant guilty and not guilty of, or indeed whether he found appellant not guilty of anything at all; under these circumstances, a proceeding in revision is not permitted, and dismissal of the charge and its specification with prejudice is required). 

 

United States v. Trew, 68 M.J. 364 (when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the court of criminal appeals cannot perform a factual sufficiency review). 

 

(where the findings remove the “on divers occasions” language from a specification but do not disclose the single occasion on which a conviction is based, the court of criminal appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was acquitted of; double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty; courts of criminal appeals may not perform an independent review of the record to determine which of the possible incidents most likely formed the basis for the conviction; however, a court of criminal appeals may review the record to determine if there was only a single possible incident that met all the details of the specification for which an appellant was convicted). 

 

2008 (September Term)

 

United States v. McCracken, 67 M.J. 467 (an appellate court may not affirm an included offense on a theory not presented to the trier of fact). 

 

(a court of criminal appeals may not affirm an Article 134, UCMJ, offense based solely on the charging of an enumerated offense at trial).


United States v. Wilson, 67 M.J. 423 (when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the court of criminal appeals cannot perform a factual sufficiency review). 

 

(an ambiguous determination of guilt precludes a court of criminal appeals from performing a factual sufficiency analysis; the court may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial). 

 

(when 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, the courts of criminal appeals may not perform an independent review of the record to determine which of the possible incidents most likely formed the basis of the conviction; ambiguous findings preclude any attempt by the lower courts to distinguish incidents that resulted in acquittal from the single incident that resulted in a conviction). 

 

(when the phrase “on divers occasions” is removed from a specification, a court of criminal appeals may review the record to determine if there is only a single possible incident that meets all the details of the specification for which the appellant was convicted). 

 

(where the government presented evidence of multiple incidents of rape that occurred during a lengthy time frame and in the general location stated in a rape specification, where the military judge found appellant guilty of the rape specification, excepting the words “on divers occasion,” where two alleged rape incidents occurred within the remaining language of the specification after the removal of the divers occasion language, where the military judge did not indicate on the record or through substitutions to the specification which alleged rape incident she was convicting appellant of, and where neither party asked for clarification as to which allege rape incident formed the basis of the conviction, the court of criminal appeals was not in a position as a matter of law to determine which of the two alleged incidents served as the grounds for appellant’s conviction without explicit guidance on the record from the military judge, and thus, it was precluded from performing a factual sufficiency review).


2008 (Transition)

Denedo v. United States, 66 M.J. 114 (in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness). 

 

United States v. Rodriguez, 66 M.J. 201 (the CCA cannot review a conviction for factual sufficiency under Article 66, UCMJ, when appellant was charged with committing an illegal act “on divers occasions,” but was found guilty at trial by exceptions and substitutions to a single unspecified act; this rule applies only in those narrow circumstances involving the conversion of a “divers occasions” specification to a “one occasion” specification through exceptions and substitutions by the members).

 

(so long as the factfinder entered a general verdict of guilty to a “on divers occasions” specification without exception, any one of the individual acts may be affirmed by the CCA as part of its Article 66, UCMJ, review). 

 

(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; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment; the presumption is similarly applicable where an “on divers occasions” general verdict is modified on appeal to a single act). 


(where the accused was found guilty of using marijuana on divers occasions by members, without exception, the CCA, in the course of conducting its legal and factual sufficiency review, could affirm the conviction with respect to a single act, after finding the evidence for the other acts was factually insufficient). 

 

(where the evidence was factually insufficient as to two of the three acts of marijuana use, the charge could nevertheless be sustained on appeal as to the third marijuana use; because that single use affirmed by the CCA no longer constituted an “on divers occasions” offense, the lower court necessarily reconstituted appellant’s charge as a single use and reassessed his sentence; the action by the CCA in this case is no different than if appellant had been charged with the three acts in question in the conjunctive, a general verdict had been returned, and the CCA found two of the acts to be unsupported by the facts adduced at trial; when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; where factually insufficient alternatives were removed on appeal, the conviction may nonetheless be sustained; an unadulterated, unobjected-to, general verdict implicitly contains a verdict of guilt as to each underlying act, and the CCA did not err in exercising its factual and legal review pursuant to Article 66, UCMJ). 

 

(a general verdict on an “on divers occasions” charge can be changed into a single act on appeal when the general verdict was reached without exception by the factfinder; it makes no difference how many members chose one act or the other, one theory of liability or the other; the only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members). 

 

2007

United States v. Beatty, 64 M.J. 456 (in their review of court-martial findings, that is, of guilt and innocence, courts of criminal appeals are limited to the evidence presented at trial).

2005

 

United States v. Augspurger, 61 M.J. 189 (when a servicemember is charged with illegal conduct “on divers occasions” and the members find the accused guilty of charged conduct but strike out the “on divers occasions” language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; where the findings do not disclose the single occasion on which the conviction is based, the Court of Criminal Appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was convicted of and which occasion the servicemember was acquitted of).

 

(a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty). 

 

(where the accused was charged with wrongfully using marijuana “on divers occasions,” and the members found him guilty of only a single use, and not guilty of use “on divers occasions,” without indicating which of three alleged uses formed the basis of its finding, the Court of Criminal Appeals did not have the authority to review and affirm the accused’s conviction for drug use by selecting the occasion that formed the basis for the conviction and then reviewing that conclusion for factual sufficiency; that court could not conduct a factual sufficiency review of appellant’s conviction because the military judge failed to clarify the factual basis upon which the members’ findings of guilty and not guilty were based; there was simply no indication by the members as to the factual basis for their findings and, in fact, the inability to determine the basis for the findings was reflected in the record; after the findings were announced, each party held a different view of the basis for the findings; even the military judge was uncertain).

 

United States v. Scheurer, 62 M.J. 100 (when an accused is charged with committing illegal conduct on divers occasions and the court-martial finds the accused guilty of charged conduct but strikes out the on divers occasions language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; when this occurs, if the findings do not disclose the single occasion on which the conviction is based, a court of criminal appeals cannot conduct a factual sufficiency review or affirm the findings because it cannot determine which occasion the servicemember was convicted of and which occasion the servicemember was acquitted of).

 

2004

 

United States v. Seider, 60 MJ 36 (the issue in this case focuses upon the uncertainty in this particular verdict – a circumstance involving the conversion of a “divers occasion” specification to a “one occasion” specification through exceptions; because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based, the Court of Criminal Appeals cannot conduct a factual sufficiency review of Appellant’s conviction; as we noted in Walters, the Court of Criminal Appeals is prevented from even conducting its factual sufficiency review by the fundamental rule that the Court of Criminal Appeals cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty; the defect is neither a question of the legal or factual sufficiency of the evidence, nor is it a question to be resolved by weighing evidence and concluding that evidence is quantitatively or qualitatively inferior).

 

2003

United States v. Walters, 58 MJ 391 (in terms of factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant's guilt beyond a reasonable doubt).

(the unique power of review for factual sufficiency is subject to a critical limitation; a Court of Criminal Appeals cannot find as fact any allegation in a specification for which the fact-finder below has found the accused not guilty).

(appellant was found guilty of using ecstasy on one occasion during the time period referenced in the specification; the Government attempted to prove allegations of wrongful use on numerous occasions and the verdict reflected that the members found appellant not guilty of all of those allegations save one; in conducting its factual sufficiency review, the Court of Criminal Appeals cannot find the appellant guilty of any of the allegations of use of which the members found him not guilty; the Court of Criminal Appeals is required to weigh the evidence and be themselves convinced beyond a reasonable doubt of appellant's guilt of engaging in wrongful use on the same "one occasion" that served as the basis for the members' guilty finding; without knowing which incident that appellant had been found guilty of and which incidents he was found not guilty of, that task is impossible; appellant has a substantial right to a full and fair review of his conviction by the Court of Criminal Appeals under Article 66(c), and the ambiguity in the court-martial's findings results in material prejudice to that right).

2002

United States v. Sills, 56 MJ 239 (“beyond a reasonable doubt” is the correct standard to fulfill congressional intent that the intermediate appellate courts conduct de novo review of factual sufficiency under Article 66(c), UCMJ.  United States v. Turner, 25 MJ 324 (CMA 1987)).

United States v. Washington, 57 MJ 394 (Article 66(c) requires the Courts of Criminal Appeals to conduct a de novo review of legal and factual sufficiency of the case; the court may affirm a conviction only if it concludes, as a matter of factual sufficiency, that the evidence proves appellant’s guilt beyond a reasonable doubt).

(the Court of Criminal Appeals is required to conduct a de novo review of the entire record of a trial, which includes the evidence presented by the parties and the findings of guilt; such a review gives no deference to the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard the witnesses).

(in the performance of its Article 66(c), UCMJ, functions, the Court of Criminal Appeals applies neither a presumption of innocence nor a presumption of guilt).

(during review under Article 66(c), UCMJ, an appellant does not bear the burden of raising doubts about the trial-level finding of guilty).

2001

United States v. McAllister, 55 MJ 270 (Courts of Criminal Appeals are charged with the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency; they must be convinced of an appellant's guilt beyond a reasonable doubt).

(if Court of Appeals for the Armed Forces is in doubt whether the Court of Criminal Appeals properly determined the factual sufficiency of the evidence, the remedy is to remand the case for a proper factual review of the findings of guilty; Court of Appeals for the Armed Forces will not overturn findings of fact by a Court of Criminal Appeals unless they are clearly erroneous or unsupported by the record).

2000

United States v. Reed, 54 MJ 37 (the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is convinced of the accused’s guilt beyond a reasonable doubt).


Sentence appropriateness: 

 

2010 (September Term)

United States v. Zarbatany, 70 M.J. 169 (a judgment regarding sentence appropriateness should necessarily encompass a judgment that any additional Article 13, UCMJ, relief would be disproportionate in the context presented). 

(meaningful relief for violations of Article 13, UCMJ, is required, provided such relief is not disproportionate in the context of the case, including the harm appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review).


2009 (September Term)

United States v. Nerad, 69 M.J. 138 (in exercising its statutory mandate under Article 66(c), UCMJ, a CCA has discretion to approve only a sentence, or such part of a sentence, that it determines, on the basis of the entire record, should be approved, even if the sentence is legally correct; even that broad discretion is not unfettered, however; the CAAF may review a CCA’s sentence appropriateness determination for abuse of discretion). 

(decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA).

United States v. Roach, 69 M.J. 17 (the CCAs are required to engage in sentence comparison only in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely-related cases; adjudged sentences are used because there are several intervening and independent factors between trial and appeal – including discretionary grants of clemency and limits from pretrial agreements – that might properly create the disparity in what are otherwise closely-related cases)

(when the CCA is exercising its power over sentence appropriateness generally, it may consider both adjudged and approved sentences). 

2008 ( September Term)

United States v. Ashby, 68 M.J. 108 (Article 66(c), UCMJ, vests in the courts of criminal appeals broad authority to determine the findings and sentence that should be approved; in conducting its sentence appropriateness review under Article 66(c), UCMJ, a court of criminal appeals has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay; the power to review a case for sentence appropriateness is vested in the courts of criminal appeals, and not in CAAF, which is limited to errors of law).   

United States v. Schweitzer, 68 M.J. 133 (a court of criminal appeals may affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; under Article 66(c), a CCA has the authority to grant relief for excessive post-trial delay without a showing of actual prejudice within the meaning of Article 59(a), UCMJ, if it deems relief appropriate under the circumstances; the CCA is required to determine what findings and sentence should be approved, based on all the facts and circumstances reflected in the record, including unexplained and unreasonable post-trial delay). 

 

(because in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it, there is no reason to doubt that the CCA panel in appellant’s case considered discretionary relief before affirming his sentence; furthermore, under the totality of the circumstances, the CCA did not abuse its discretion in not granting discretionary sentencing relief on the basis of the eight-year delay from the announcement of the sentence until its original opinion). 


2008 (Transition)

Denedo v. United States, 66 M.J. 114 (in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness). 

2007

United States v. Pflueger, 65 M.J. 127 (in the course of conducting sentence appropriateness review under Article 66(c), UCMJ, the CCA has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay). 


United States v. Beatty, 64 M.J. 456 (in their review of the sentence appropriateness of a court-martial conviction, courts of criminal appeals may consider not only evidence admitted at trial, but also the matters considered by the convening authority in his action on the sentence).

United States v. Simon, 64 M.J. 205 (because a sentence appropriateness analysis under Article 66(c), UCMJ, is highly case specific, the details of a servicemember’s post-trial situation constitute an important element of a CCA’s analysis).


2006


United States v. Toohey, 63 M.J. 353 (the court of criminal appeals abused its discretion by denying sentence appropriateness relief under Article 66(c), UCMJ, for unreasonable post-trial delay by requiring that a case rise to the level of “most extraordinary” before the court would consider exercising its unique Article 66(c), UCMJ, authority). 


(a court of criminal appeals has the power to grant sentence relief under Article 66(c), UCMJ, where there has been unreasonable post-trial delay, and the exercise of that power does not require a finding of prejudice, nor are there any criteria limiting the exercise of that power to only the “most extraordinary” cases; the essential inquiry remains appropriateness in light of all circumstances, and no single predicate criteria of “most extraordinary” should be erected to foreclose application of Article 66(c), UCMJ, consideration or relief; moreover, the responsibility of the court of criminal appeals to affirm only so much of the sentence as should be approved does not implicate Article 59(a), UCMJ). 


2005

 

United States v. Bodkins, 60 MJ 322 (a court of criminal appeals must review the record in each case referred to it and may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; in performing its affirmative obligation to consider sentence appropriateness, the court must take into account all the facts and circumstances reflected in the record, including any unexplained and unreasonable post-trial delay).

United States v. Baier, 60 MJ 382 (in this case, the lower court concluded its sentence appropriateness analysis by stating that appellant “received the individual consideration required based on the seriousness of his offenses and his own character, which is all the law requires;” based on that language, it is impossible for us to determine whether the lower court conducted an independent assessment of the appropriateness of appellant’s sentence or merely deferred to the “individual consideration” appellant had previously received from the military judge and the convening authority; nor can we determine whether the lower court independently assessed the sentence’s appropriateness for this particular offender or merely determined that the sentence was not so disproportionate to the crime as to cry out for equalization). 

 

(a Court of Criminal Appeals must determine whether it finds the sentence to be appropriate; it may not affirm a sentence that the court finds inappropriate, but not so disproportionate as to cry out for reduction; as the Army Court has recognized, Article 66(c)’s sentence appropriateness provision is a sweeping Congressional mandate to ensure a fair and just punishment for every accused; Article 66(c) requires that the members of the Courts of Criminal Appeals independently determine, in every case within their limited Article 66, UCMJ, jurisdiction, the sentence appropriateness of each case they affirm). 

 

2002

United States v. Hutchinson, 57 MJ 231 (during review of the sentence approved by the convening authority, the Court of Criminal Appeals must review the entire record and determine whether the sentence approved by the convening authority should be approved or whether the court should approve only a part or amount of the sentence).

(the power to review a case for sentence appropriateness includes but is not limited to consideration of:  uniformity and evenhandedness of sentencing decisions; a sentence imposed by a civilian court in a closely related case; information that the accused brought to the attention of the convening authority, the allied papers; the record of trial proceedings; the wisdom, experience, and expertise of the appellate judges of the court including potential impact of administrative and nonjudicial means of disposition under service regulations, customs, and policies).

(a remand for a de novo review of appellant’s military sentence under Article 66(c) was necessary to ensure that the Court of Criminal Appeals properly limited its review to considering whether the military sentence is inappropriate, and to eliminate the possibility that the Court of Criminal Appeals acted because it viewed state court proceedings as inappropriate and sought to lessen the punishment from those proceedings).

United States v. Washington, 57 MJ 394 (in reviewing a case for sentence appropriateness, the Courts of Criminal Appeals are not required to compare appellant’s case to other specific cases unless the appellant demonstrates that his or her case is closely related to the case or cases offered for comparison; mere similarity of offenses is not sufficient).

(in review of sentence appropriateness decisions by the Courts of Criminal Appeals, Court of Appeals for the Armed Forces will determine whether the lower court abused its discretion or caused a miscarriage of justice in exercising its highly discretionary sentence review function).

2001

United States v. Sothen, 54 MJ 294 (Court of Criminal Appeals is required to engage in sentence comparison only in those rare instances in which sentence appropriateness can fairly be determined only by reference to disparate sentences adjudged in closely related cases).

(an appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant’s case, and that the sentences are “highly disparate”; if the appellant meets that burden, or if the court raised the issue on its own motion, the burden shifts to the government to show a rational basis for the disparity).

(there is nothing in the plain language of Article 66, in its legislative history, or in case law of Court of Appeals for the Armed Forces that would preclude the Courts of Criminal Appeals from engaging in sentence comparison when there is a closely related case from the civilian sector (involving a civilian co-actor, for example) with a highly disparate sentence).

(after plotting to have his wife murdered, appellant was sentenced to, inter alia, 25 years’ confinement; his civilian co-actor received a sentence including, inter alia, 3 years’ confinement; Court of Criminal Appeals did not abuse its discretion with respect to sentence appropriateness and articulated a rational basis for this sentence disparity by citing the following reasons:  (1) the parties were tried by two different sovereigns; (2) sentence comparison between civilian and military cases is less persuasive than comparison among courts-martial in light of the differences between civilian and military approaches to sentencing and punishment; (3) appellant was convicted of multiple serious offenses, while his co-actor was convicted only of a single count of solicitation; (4) the charges against appellant were contested, while the conviction of the civilian co-actor was based on a voluntary, negotiated plea of guilty; and (5) the sentence of appellant’s co-actor reflected the fact that she had agreed to assist the prosecution by testifying against appellant).

United States v. Durant, 55 MJ 258 (Congress has vested responsibility for determining sentence appropriateness in the Courts of Criminal Appeals, and this task includes considerations of uniformity and evenhandedness of sentencing decisions).

(sentence comparison does not require sentence equation).

(where the lower court fails to articulate its rationale for affirming a sentence in the face of closely related cases with highly disparate sentences, Court of Appeals for the Armed Forces will affirm only where the respective records of trial clearly manifest differences in these two soldier’ cases that explain the respective sentences).

United States v. Wacha, 55 MJ 266 (Courts of Criminal Appeals are required to engage in sentence comparison with specific cases when they perform their Article 66(c) sentence appropriateness review in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).

(there is no limitation on the Court of Criminal Appeals’ discretion to consider and compare other courts-martial sentences when that court is reviewing a case for sentence appropriateness and relative uniformity).

(Congress has vested responsibility for determining sentence appropriateness in the Courts of Criminal Appeals, and that responsibility includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions).

(assuming arguendo that Court of Criminal Appeals was unduly restrictive in performing its sentence appropriateness function by declaring that it could not consider and compare other court-martial sentences with that of this appellant unless the cases were closely related and the sentences were highly disparate, that court did not abuse its discretion in finding that appellant’s sentence was relatively uniform and appropriate; a fair reading of the lower court’s opinion is convincing that the judges went beyond a mere comparison to a co-actor’s sentence when determining that appellant’s sentence was both relatively uniform and appropriate).

1999


United States v. Gray
, 51 MJ 1 (Court of Military Review (now Court of Criminal Appeals) did not abuse its discretion in determining that appellant’s death sentence was appropriate where it properly considered post-trial evidence of appellant’s organic brain damage, the evidence of a personality disorder, and the offenses and circumstances surrounding those offenses).

(proportionality review is required by Article 66(c), UCMJ, in death penalty cases as part of the sentence appropriateness determination and is not constitutionally required).

(proportionality review required by Article 66(c), UCMJ, is a general offense-oriented proportionality review).

(proportionality review required by Article 66(c), UCMJ, was properly conducted in appellant’s case by considering Supreme Court decisions on state cases which presented situations similar to appellant’s).
 


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