2015 (September Term)
United States v. Williams, 75 M.J. 244 (under Article 67(a), UCMJ, the CAAF has jurisdiction to hear cases which the JAG orders sent for review; while the statute does not by its own terms set a deadline for the JAG’s filing of a certificate for review, Congress has authorized the CAAF to prescribe its own rules of procedure, Article 144, UCMJ, and CAAF Rule 19(b)(3) provides for such a deadline - a certificate for review shall be filed either (a) no later than 60 days after the date of the decision of the CCA, or (b) no later than 30 days after a petition for grant of review is granted).
(when the government is independently seeking the CAAF’s review through a certificate for review, the 60-day filing deadline of CAAF Rule 19(b)(3) applies from the date of the decision of the CCA; the key rule in this case, CAAF Rule 34(a), provides the method for calculating that date: when a period of time is computed under these rules from the date of the decision of a CCA, such time is to be computed from the date of such decision, unless a petition for reconsideration is timely filed, in which event the period of time is to be computed from the date of final action on the petition for reconsideration; in summary, CAAF rules require that a certificate of review be filed 60 days after a CCA decision, unless a petition for reconsideration is timely filed; if this triggering event occurs, then the JAG has sixty days to file from the date of final action on the petition for reconsideration).
(in this case, the government did not effectively extend the CAAF’s 60-day deadline for filing a certificate for review by filing successive motions for reconsideration at the CCA; only the government’s first motion to reconsider constituted a qualifying petition for reconsideration of the original decision under the CAAF’s Rules of Practice and Procedure, and thus its second motion for reconsideration did not toll the 60-day deadline for filing a certificate for review; a government petition to reconsider a CCA’s decision to deny an original petition for reconsideration does not qualify as a petition for reconsideration under CAAF Rule 34(a), and toll the 60-day deadline; CAAF Rule 34(a)’s phrase “a petition for reconsideration” means a petition for reconsideration of the CCA’s original decision; the rule contemplates, quite simply, a petition for reconsideration of the substantive decision at issue - not petitions to reconsider the denial of a prior petition for reconsideration; a second petition for reconsideration fails to extend the time for seeking review).
United States v. Chin, 75 M.J. 220 (in line with the “limited power” language of Federal Rule of Criminal Procedure 52(b) and the CAAF’s more circumscribed statutory authority, an appellant may not raise on appeal, and the CAAF cannot rectify an error that was waived at trial; however, this “ordinary” rule does not apply to a CCA’s wholly dissimilar statutory review where Article 66(c), UCMJ, requires that the CCAs conduct a plenary review and that they affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved).
United States v. Atchak, 75 M.J. 193 (CAAF generally reviews a CCA’s action under Article 66, UCMJ, for an abuse of discretion).
United States v. Pease, 75 M.J. 180 (CAAF will not review certified issues when practically speaking, any action which it might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the government).
(CAAF reviews questions of law de novo).
United States v. Riggins, 75 M.J. 78 (CAAF Rule 36A permits a party to advise the court by letter of citations to pertinent and significant supplemental authorities after the party has filed a pleading or after oral argument but before a final decision; Rule 36A is not intended to provide a party with the opportunity to present entirely new arguments; if a party believes that the court should consider a new argument, it must seek permission to file a supplemental brief under CAAF Rule 30).
United States v. LaBella, 75 M.J. 52 (an appellant must file his petition for review at the CAAF within sixty days from the date he is notified of the decision of the CCA, or the date on which a copy of that decision, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first class certified mail to the accused, whichever is earlier; if during that sixty-day period, an appellant files a motion for reconsideration at the CCA, there is no CCA decision for the CAAF to review; in such a case, the sixty-day statutory filing period at the CAAF begins to run anew, following the CCA's disposition of the motion; in this case, where appellant failed to file either a petition for review at the CAAF or a petition for reconsideration at the CCA within the statutory filing period, his conviction became final as to the legality of the proceedings at the end of the sixty-day filing period; therefore, the CCA lacked jurisdiction to grant appellant's petition for reconsideration out of time and, consequently, the CAAF lacked jurisdiction to consider appellant's petition for review).
2014 (September Term)
United States v. Arness, 74 M.J. 441 (where the CCA had no jurisdiction to consider a writ, the CAAF is without jurisdiction to hear a writ-appeal because the CAAF’s jurisdiction is predicated on the jurisdiction of the CCA).
United States v. Akbar, 74 M.J. 364 (as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases).
(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case).
(a denial by the CCA of an appellant’s request for appellate assistance by mental health experts is reviewed for an abuse of discretion by the CAAF; an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law).
(after a CCA performs a proportionality review of a death sentence, the task of the CAAF is to assure that the lower court’s review was properly performed; however, the CAAF does not require the CCA to always articulate its reasoning for its decision).
(the CAAF has reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel; almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun “we” when explaining the actions or reasoning that only one counsel may have engaged in; therefore, although the CAAF evaluates the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel, it concludes that the better practice is for the CCAs to require counsel to submit individual affidavits).
United States v. Quick, 74 M.J. 332 (when the CAAF considers a request to overrule a prior decision of the court, it analyzes the matter under the doctrine of stare decisis).
United States v. Keefauver, 74 M.J. 230 (when reviewing a decision of a CCA on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge's ruling).
United States v. Piolunek, 74 M.J. 107 (Article 67(c), UCMJ, expressly limits review by CAAF to matters of law; there can be no question that Congress did not intend to extend review by CAAF to questions of fact; questions of credibility, or assertions that the factual basis for a ruling should be reinterpreted are not reviewable by CAAF; it may not reassess a lower court’s fact-finding; recognizing that the distinction between a question of law and a question of fact is not always clearly defined, CAAF must nevertheless avoid resolving questions of fact which are separable from a question of law).
(in this case, the CCA’s determination that three images did not constitute visual depictions of a minor engaging in sexually explicit conduct was based on its conclusion that none of these three images contained an exhibition of her genitals or pubic region; because that threshold factual determination was eminently separable from its legal consequence, it is not one that CAAF may revise; consistent with Article 67(c), UCMJ, however, a different analysis pertains if a CCA’s finding of fact was clearly erroneous or unsupported by the record).
(in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi).
2013 (September Term)
United States v. Wilson, 73 M.J. 404 (under Article 67(a)(2), UCMJ, the CAAF shall review all cases reviewed by a CCA which the JAG orders sent to it for review; in this case, where the CCA answered in the affirmative a specified issue as to whether Article 12, UCMJ, applied to a military member serving a court-martial sentence to confinement in a civilian county jail in Georgia and the JAG certified that same issue to the CAAF, the CAAF had statutory jurisdiction to review the CCA’s decision under Article 67(a)(2), UCMJ; there was a justiciable case and controversy before the CAAF, where the CCA has rendered a final action in the case by deciding the Article 12 issue, a certificate for review was issued by the JAG, and the applicability of the Article 12 issue to appellee was interwoven with the resolution of his complaints about confinement conditions).
United States v. Danylo, 73 M.J. 183 (Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court).
United States v. Moss, 73 M.J. 64 (the decision whether to take an appeal to an appellate court is personal to an appellant).
(appellant did not authorize an appeal to the CAAF when she signed a pretrial rights advisement that advised her that she could petition the CAAF for review after the CCA had completed its review; the rights advisement simply informed her that if her conviction was affirmed by the CCA, she had the discretion to appeal to the CAAF and the Supreme Court, and if she chose to do so she had the same right to counsel before those courts as she did before the CCA; the language concerning a possible appeal to the CAAF was informative only, and appellant’s exercise of her right to counsel before the CCA cannot be construed to authorize a subsequent appeal to either the CAAF or the Supreme Court).
(if an accused is not available and cannot be located within the time provided to file a petition for review before the CAAF, appellate defense counsel can and should proceed in accordance with the authority previously given by the accused and file such proceedings as may be necessary to protect the interests of his client; if the accused only indicated a desire to be represented by appellate defense counsel before the CCA, the attorney-client relationship is limited to representation before the CCA).
(because the decision to appeal to the CAAF must be made by appellant, where the record does not reflect that appellant authorized such an appeal, the CAAF lacks statutory jurisdiction and the appeal must be dismissed).
United States v. Winckelmann, 73 M.J. 11 (when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF).
2012 (September Term)
LRM v. Kastenberg, 72 M.J. 364 (the CAAF has statutory jurisdiction under Article 67(a)(2), UCMJ, to review the record in all cases reviewed by a CCA which the JAG orders sent to the CAAF for review; the definition of case as used within that statute includes a final action by a CCA on a petition for extraordinary relief; in this case, where the CCA took a final action on a petition for extraordinary relief when it denied a victim’s petition for a writ of mandamus, the CAAF had jurisdiction over a certificate submitted by the JAG pursuant to Article 67(a)(2), UCMJ, with respect to this final action, just as it would in the case of a writ-appeal).
(even though the CCA did not reach the substantive issues raised in the questions of law certified by the Judge Advocate General because it denied a petition for a writ of mandamus for lack of jurisdiction, the CAAF may still take action with respect to all of the certified issues, including whether it should issue a writ of mandamus).
United States v. Cote, 72 M.J. 41 (on direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, CAAF reviews whether the military judge’s initial decision was an abuse of discretion).
2010 (September Term)
United States v. Zarbatany, 70 M.J. 169 (whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review).
United States v. Stefan, 69 M.J. 256 (the CAAF will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals, unless good cause is shown).
United States v. Nerad, 69 M.J. 138 (a CCA may approve only that part of a sentence that it finds should be approved; in reviewing the exercise of this power, the CAAF asks if the CCA abused its discretion or acted inappropriately - that is, arbitrarily, capriciously, or unreasonably - as a matter of law).
(the power of the CAAF to review a case certified by the Judge Advocate General under Article 67(a)(2), UCMJ, includes the power to order remedial proceedings, such as a remand, to ensure that the lower court reviews the findings and sentence approved by the convening authority in a manner consistent with a correct view of the law).
United States v. Graner, 69 M.J. 104 (the CAAF will normally not consider any facts outside of the record established at the trial and the CCA; however, the CAAF may remand for further factfinding if an issue concerning an unresolved fact affects its resolution of the case).
United States v. Roach, 69 M.J. 17 (the CAAF reviews the sentence appropriateness decisions of the CCAs for an abuse of discretion and may order a de novo review when the lower court has erred as a matter of law).
United States v. Smith, 68 M.J. 445 (after appellant sought reconsideration of the CCA’s decision affirming his conviction, the 60-day period for filing a petition for review at CAAF began on the date the defense was formally notified, under the provisions of Article 67(b), UCMJ, of the CCA’s decision on reconsideration; until the CCA rendered a decision on the reconsideration request, either by denying reconsideration or by granting reconsideration and rendering a new decision, there was no CCA decision for the CAAF to review).
United States v. Harmon, 68 M.J. 325 (the CAAF reviews questions of legal sufficiency de novo as a matter of law).
United States v. Smith, 68 M.J. 316 (the CAAF reviews the question of whether the military judge correctly determined that an order was lawful on a de novo basis).
(the CAAF reviews de novo the question whether
the evidence is legally sufficient to support a finding of guilty).
(the CAAF reviews de novo the question whether
the evidence is legally sufficient to support a finding of guilty).
2008 (September Term)
United States v. Ashby, 68 M.J. 108 (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. Matthews, 68 M.J. 29 (CAAF reviews de novo a CCA’s conclusion that MRE 509 [Privileges - Deliberations of courts and juries] is inapplicable to military judges).
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).
United States v. Rodriguez, 67 M.J. 110 (Article 67(b), UCMJ, provides that an accused may petition the CAAF for review of a decision of a CCA within sixty days from the earlier of the date upon which the accused is actually notified or the date upon which he or she is constructively notified of the decision of the CCA; this congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional).
(where appellant filed his petition for grant of review at the CAAF outside the sixty-day statutory period for the filing of such petitions, the CAAF did not have authority to entertain the petition for review because the sixty-day period was jurisdictional and could not be waived).
(where a time limitation for an appeal is derived from a statute, the taking of an appeal within the prescribed time is mandatory and jurisdictional; statute-based rules of limitation are distinguished from those having their origin in court-created rules; there is jurisdictional significance in the fact that a time limitation is set forth in a statute because only Congress may determine a lower federal court’s subject-matter jurisdiction; in contrast, the rule-based time limit may be waived because the procedural rules adopted by a court for the orderly transaction of its business are not jurisdictional and can be relaxed by the court in the exercise of its discretion; an important distinction between the jurisdictional statute-based limitations and those created within a court’s internal rules is that the courts have no authority to create equitable exceptions to jurisdictional requirements).
(the entire system of military justice is a creature of statute, enacted by Congress pursuant to the express constitutional grant of power to make Rules for the Government and Regulation of the land and naval Forces; in Articles 141 through 146, UCMJ, Congress provided the source authority for the existence of the CAAF; the CAAF’s authority or subject matter jurisdiction is defined by Article 67, UCMJ).
(under the plain language of Article 67(b), UCMJ, the provision governing petitions for review of CCA decisions, an appellant may file a petition for grant of review with the CAAF, and, if he or she chooses to do so, it must be done within the sixty-day time limitation; nothing within Article 67(b)’s statute-based time limitation is permissive and there is no indication that the CAAF can waive the limitation for equitable reasons).
(the legislative history of Article 67(b), UCMJ, reflects that Congress intended the sixty-day appeal period to the CAAF to be a statute–based limitation and mandatory; only the opportunity to petition for review is permissive; the time within which to do so is not; any other construction of the relationship between opportunity to petition and the time within which to file is inconsistent with the expressed congressional desire to achieve finality; if the time limitation is triggered and an accused does not act, Congress intended the matter to end).
(the opportunity to petition the CAAF lapses or expires by statute when the sixty-day statute-based limitation is not met, and the sixty-day limitation is jurisdictional and mandatory; relief from that time limitation does not rest in the discretion of the court; to the extent that earlier cases of the court are inconsistent with this holding, they are overruled).
Denedo v. United States, 66 M.J. 114 (for a writ appeal, the CAAF considers the record developed at trial and on direct appeal; it also considers the materials filed by the parties in the course of the writ proceedings at the court of criminal appeals and the appeal to the CAAF; based on the foregoing, the CAAF considers whether a decision on the writ appeal can be reached on the record before it, or whether a more fully developed factual record is required prior to reaching a decision on the merits).
(although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review).
(the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari).
(although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction).
(the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review).
(when courts within the military justice
system lack subject matter jurisdiction over an action, such as an
administrative separation, they cannot invoke the All Writs Act to
their jurisdiction to review the administrative action, even if it is
upon the results of a court-martial).
(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
their jurisdiction to review the administrative action, even if it is
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).
(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. Ortiz, 66 M.J. 334 (the CAAF will not selectively search the record and make post hac factual findings supporting the military judge’s decision to close the courtroom, because it may only take action with respect to matters of law).
United States v. Travis, 66 M.J. 301 (as a court of law, the CAAF lacks the authority to make factual determinations).
(the CAAF cannot substitute its judgment about the merit of a request for clemency or the weight to be given any specific clemency recommendation by a convening authority).
(where a servicemember has been deprived of full and fair clemency consideration by a convening authority, the CAAF is not reluctant to return a case for an otherwise proper review and action).
United States v. Beatty, 64 M.J. 456 (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; the judges of the courts of criminal appeals, as
senior judge advocates, are presumed to know and correctly apply the
United States v. Tamez, 63 M.J. 201 (by Article 67(b), UCMJ, Congress has granted an accused the statutory right to petition CAAF for review within sixty days from the earlier of: (1) the date on which the accused is notified of the decision of the court of criminal appeals; or (2) the date on which a copy of the decision of the court of criminal appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record).
(good cause for CAAF to consider appellant’s petition for review eight days out of time was shown where appellate defense counsel had the misapprehension that the decision below had not been served on counsel, appellant had been represented by four different appellate counsel, and his current counsel did not assume the position until after the sixty-day filing period had run).
United States v. Ribaudo, 62 M.J. 286 (the CAAF adheres to its policy of not abating proceedings ab initio for cases before the court under Article 67(a)(3), UCMJ, when an appellant dies; the CAAF exercises discretion over its petition docket and review under Article 67(a)(3), UCMJ, is discretionary with the court).
(the CAAF has left to the courts of criminal appeals 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).
(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).
Loving v. United States, 62 M.J. 235 (as an Article I court, the U.S. Court of Appeals for the Armed Forces is a court of limited jurisdiction; it may not act unless Congress has given it the authority to do so; Congress has confined the CAAF’s jurisdiction to review of specified sentences imposed by courts-martial; the CAAF has the power to act only with respect to the findings and sentence as approved by the court-martial’s convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals).
(a primary responsibility of the U.S. Court of Appeals for the Armed Forces is the supervision of the military justice system through appellate review).
(the U.S. Court of Appeals for the Armed Forces has collateral review jurisdiction over a military death penalty case and may entertain assertions of error as to the legality of the sentence in the period after there is a final judgment as to the legality of the proceedings under Article 71(c)(1), with the completion of direct review, but before the case is final under Article 76 with the approval of the sentence by the President; a capital case is final with the meaning of Article 76 only after the President, acting under Article 71(a), approves it; as finality under Article 76 is the terminal point for proceedings within the court-martial and military justice system, the CAAF’s jurisdiction continues until a case is final).
(Article 67(a) vests the U.S. Court of Appeals for the Armed Forces with subject matter jurisdiction over military capital cases; but such cases are not final under Article 76 until the President orders the sentence executed; thus, the CAAF’s subject matter jurisdiction continues even after a Supreme Court’s decision affirming a petitioner’s death sentence).
(a petition for writ of error coram nobis was not the appropriate procedural vehicle to seek collateral review of a death penalty by the U.S. Court of Appeals for the Armed Forces during the period after completion of direct review, but before approval of the sentence by the President; a writ of habeas corpus was the only pleading available to raise the substantive challenges to the legality of the death sentence).
United States v. Leak, 61 M.J. 234 (it is within this Court’s authority under Article 67, UCMJ, to review a lower court’s determination of factual insufficiency for application of correct legal principles; this authority is limited to matters of law, and this Court may not reassess a lower court’s factfinding).
(although a Court of Criminal Appeals has broad factfinding power, its application of the law to the facts must still be based on a correct view of the law; Article 67 does not preclude review by this Court of questions of law certified by Judge Advocates General where the courts of criminal appeals have set aside a finding on the ground of factual insufficiency; however, such review must be conducted in a manner consistent with the Double Jeopardy Clause).
(exercise of this Court’s authority under Article 67 to review certified questions of law does not permit supplementation of the factual record by either side; the lower court’s review having become final with the assumption of this Court’s jurisdiction, the facts, as opposed to the application of the law to those facts, are set).
(in reviewing questions of law certified by the government under Article 67, this Court may not supplant the lower court’s evaluation of the weight of the evidence with its own; that would indeed be acting beyond its statutory authority).
(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 for purposes of the Double Jeopardy Clause; neither Article 67(c) nor double jeopardy considerations preclude this Court from reviewing questions of law raised by the government by certification where the members at trial have returned a finding of guilty but that finding has been set aside by the court of criminal appeals for factual insufficiency).
United States v. Seider, 60 MJ 36 (where we cannot determine whether the Court of Criminal Appeals reviewed and affirmed an offense of which the accused was acquitted, we cannot affirm that finding).
United States v. Toohey, 60 MJ 100 (we have recognized that where important facts necessary to resolve an issue are unavailable, a remand to the Court of Criminal Appeals to establish a factual record normally is required).
United States v. Gore, 60 MJ 178 (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. Rorie, 58 MJ 399 (when an appellant dies pending an Article 67(a)(3) appellate review by CAAF, it will dismiss or deny the petition but will not abate the action ab initio; CAAF therefore adopts the rule established by the U.S. Supreme Court in Dove v. United States, 423 U.S. 325 (1976); Berry v. The Judges of the United States Army Court of Military Review, 37 M.J. 158 (C.M.A. 1993) and United States v. Kuskie, 11 M.J. 253 (C.M.A. 1981) are hereby overruled to the extent that they are inconsistent with this decision).
United States v. Brunson, 59 MJ 41 (CAAF Rule 30(a) requires that motions contain the factual or legal grounds for requesting relief; "administrative oversight" is merely a conclusion that provides neither a factual nor a legal basis for the relief sought).
(appellate practitioners should be on notice that this Court will not countenance further disregard of the Rules of Court and case law; in so ruling, this Court emphasizes that disregard for the Rules besmirches the image of military justice; this Court does not condone disregard of the Rules by accepting late filings when the delay seems to be the result of neglect and carelessness, and it shall consider appropriate sanctions in the event of flagrant or repeated disregard of the Rules).
United States v. Humpherys, 57 MJ 83 (although the military judge did not articulate his reasons for concluding that any prejudicial effect of the testimony did not substantially outweigh its probative value, Court of Appeals for the Armed Forces may determine that the record permits it to conduct the required balancing during appellate review).
United States v. Tardif, 57 MJ 219 (in accordance with Article 67, Court of Appeals for the Armed Forces reviews the sentencing decisions of the Courts of Criminal Appeals for “obvious miscarriages of justice or abuses of discretion).
United States v. Hutchinson, 57 MJ 231 (in reviewing the exercise of Article 66(c) sentencing powers, the Court of Appeals for the Armed Forces determines, as a matter of law, whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).
United States v. Rogers, 54 MJ 244 (Court of Appeals for the Armed Forces is a court with only legal review authority and reviews facts in the light most favorable to the prevailing party below; it is not the court’s function to reweigh evidence and determine guilt or innocence anew).
United States v. Sothen, 54 MJ 294 (Court of Appeals for the Armed Forces review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow issue of whether there has been an obvious miscarriage of justice or abuse of discretion).
United States v. White, 54 MJ 469 (Court of Appeals for the Armed Forces need not remand a case for further factfinding if the court can determine that the facts asserted, even if true, would not entitle an appellant to relief).
United States v. Riley, 55 MJ 185 (assuming jurisdiction at the Court of Criminal Appeals, an appellant cannot come to harm by appealing to the Court of Appeals for the Armed Forces and securing a reversal of his conviction; an accused who obtains review at the Court of Appeals for the Armed Forces does not forego the right to beneficial action taken on his behalf by the Court of Criminal Appeals).
United States v. Durant, 55 MJ 258 (the role of the Court of Appeals for the Armed Forces in reviewing whether the Court of Criminal Appeals properly carried out its highly discretionary function of sentence appropriateness is to determine whether the lower court abused its discretion or caused a miscarriage of justice).
(in reviewing claims of disparate sentences, Court of Appeals for the Armed Forces will examine three questions of law: (1) whether the cases are closely related; (2) whether the cases resulted in highly disparate sentences; and (3) whether there is a rational basis for the difference between the cases).
(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 (Court of Appeals for the Armed Forces reviews, as a matter of law, whether the Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).
United States v. Benedict, 55 MJ 451 (U.S. Court of Appeals for the Armed Forces is bound by the military judge’s finding of fact unless it is clearly erroneous).
United States v. Harris, 55 MJ 433 (when the Court of Appeals for the Armed Forces reviews a decision of a Court of Criminal Appeals on a military judge’s ruling, it typically has pierced through that intermediate level and has examined the military judge’s ruling, and then decided whether the Court of Criminal Appeals was correct in its examination of the military judge’s ruling).
United States v. Tualla, 52 MJ 228 (decisions of the Court of Appeals for the Armed Forces designed to guide the conduct of further proceedings are binding and preclude the lower courts from actions which are contrary to those decisions).
United States v. Byrd, 53 MJ 35 (where the government does not raise the issue of timeliness until after a petition for review has been granted, the court will not revisit the issue of the timeliness of the initial filing absent clear and unequivocal evidence that the petition was untimely filed).
United States v. Tollinchi, 54 MJ 80 (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).
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).
Steele v. Van Riper, 50 MJ 89 (issuance of an administrative discharge after trial does not negate the power of the Court of Appeals for the Armed Forces to act on the findings and sentence).
United States v. Fee, 50 MJ 290 (on issues of sentence appropriateness, Court of Appeals for the Armed Forces is limited to determining, as a matter of law, whether the decision of the Court of Criminal Appeals constituted an abuse of discretion or a miscarriage of justice).
(on appeals involving closely related cases with highly disparate sentences, Court of Appeals for the Armed Forces may reverse Court of Criminal Appeals only in the absence of a rational basis for the differing sentences).
United States v. Lacy, 50 MJ 286 (in reviewing actions of the Courts of Criminal Appeals on sentence appropriateness, Court of Appeals for the Armed Forces review is limited to preventing obvious miscarriages of justice or abuses of discretion).
(Court of Appeals for the Armed Forces’ review of Court of Criminal Appeals decision in cases alleging highly disparate sentences is limited to three questions of law: (1) whether the cases are “closely related”; (2) whether the cases resulted in “highly disparate” sentences; and (3) if relief was not granted in a closely related case involving highly disparate sentences, whether there is a rational basis for the differences between or among the cases).
United States v. Murphy, 50 MJ 4 (in reviewing a capital case, CAAF will follow statutory mandate that “[a] finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; however, in so doing, the CAAF will ensure that fundamental notions of due process, full and fair hearings, competent counsel, and above all, a “reliable result,” are all part of the equation to ensure that the military member has received a fair trial).
United States v. Riley, 50 MJ 410 (where the Courts of Criminal Appeals exercise their unique fact-finding power and set aside a finding of guilty as incorrect in fact, as opposed to incorrect in law, that decision is virtually unreviewable by the Court of Appeals for the Armed Forces. See Article 67(c), UCMJ.).
United States v. Gammons, 51 MJ 169 (the jurisdiction of the Court of Appeals for the Armed Forces does not extend to direct review of nonjudicial punishment proceedings).
United States v. Gray, 51 MJ 1 (claim that Court of Appeals for the Armed Forces lacks 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. Holt, 52 MJ 173 (reweighing evidence and reevaluating credibility, matters of factual sufficiency, are outside the statutory parameters of Court of Appeals for the Armed Forces’ review; the court reviews for legal sufficiency, considering the evidence in the light most favorable to the government and determining whether the evidence provides a sufficient basis upon which a rational factfinder could find all the essential elements beyond a reasonable doubt).