TRIAL STAGES: Appeals: Scope of Review

2019 (October Term)

United States v. Jessie, 79 M.J. 437 (with respect to the scope of a CCA’s review of sentences under Article 66(c), UCMJ [now Article 66(d), UCMJ], a CCA can affirm only so much of a sentence that it finds correct in law; this provision prevents a CCA from affirming an unlawful sentence, such as one that violates the prohibition against cruel and unusual punishment in the Eighth Amendment and Article 55, UCMJ; in addition, a CCA may affirm only so much of a sentence as it determines should be approved; pursuant to these words, a CCA may not affirm any portion of a sentence that it finds excessive; a CCA has broad discretionary power to review sentence appropriateness; finally, a CCA must review a sentence on the basis of the entire record; the phrase entire record includes the record of trial and allied papers; under the Rules for Courts-Martial applicable to this case, the record of trial contains all of the items listed in RCM 1103(b)(2), and the allied papers are items now identified as matters attached to the record in accordance with RCM 1103(b)(3); additionally, the entire record also includes briefs and arguments that government and defense counsel (and appellant personally) might present regarding matters in the record of trial and allied papers). 

(the nature of the appellate issue determines the extent to which a CCA may consider matters attached to the record; for example, a CCA may consider a rejected exhibit (i.e., something that would not be part of the record of trial), in an appeal challenging a ruling that denied admission of the exhibit; in contrast, in reviewing the legal and factual sufficiency of the evidence, a CCA may consider only admitted evidence found in the record of trial). 

(a CCA may not consider anything outside of the entire record of trial when reviewing a sentence under Article 66(c), UCMJ [now Article 66(d), UCMJ], because the text of Article 66(c), UCMJ, does not permit a CCA to consider matters that are outside the entire record).

(an exception to the rule restricting a CCA’s review to matters within the entire record allows a CCA to consider affidavits and gather additional facts through a DuBay [17 CMA 147, 37 CMR 411 (1967)] hearing when doing so is necessary for resolving issues raised by materials in the record).

(two CAAF precedents, Erby [54 MJ 476 (CAAF 2001)] and Pena [64 MJ 259 (CAAF 2007)] allow an appellant to raise and present evidence of Eighth Amendment claims of cruel and unusual punishment and violations of Article 55, UCMJ, to a CCA even though there is nothing in the record regarding those claims; today, the instant case cabins but does not overrule Erby or Pena, with respect to Article 55, UCMJ, or Eighth Amendment claims; what is decided today is that the practice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment).

(in this case, where appellant had been convicted of sexually assaulting a child and where for the first time on appeal before the CCA asked that court to reduce his sentence on the grounds that the visitation policy at the confinement facility violated his First and Fifth Amendment rights by depriving him of all direct and indirect contact with his biological children, the CCA did not err by refusing to consider specific evidence of appellant’s confinement conditions because the entire record of trial contained no information about the visitation policy or its application to him; neither the record of trial nor the other matters attached to the record of trial mentioned the policy; instead, appellant first raised his claims regarding the policy in the form of an affidavit, with attachments, submitted to the CCA; in accordance with the text and the CAAF’s interpretation of Article 66(c), UCMJ [now Article 66(d), UCMJ], the CCA could not consider this material). 

United States v. Finch, 79 M.J. 389 (where a military judge places on the record his analysis and application of the law to the facts with respect to an evidentiary objection, deference by an appellate court to his ruling is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded). 

2018 (October Term)

United States v. Gonzales, 78 M.J. 480 (when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error). 

United States v. Perkins, 78 M.J. 381 (a familiar principle of appellate practice is that an appellee or respondent may defend the judgment below on a ground not earlier aired). 

(in this case, although the government did not address the good faith exception in responding to the accused’s motion to suppress before the military judge, the government was permitted to raise the good faith exception at the CAAF in responding to appellant’s appeal because the military judge did not rule on whether the government agents acted in good faith; as such, the law of the case doctrine did not preclude appellate consideration of the government’s argument).   

2017 (October Term)

United States v. Dinger, 77 M.J. 447 (although a court-martial is not prohibited from sentencing a retiree to a punitive discharge or any other authorized punishment, the collateral effect of such a sentence on a retiree is a different question that is not within the scope of our review; Congress saw fit to give jurisdiction over pay claims and related matters to other federal courts, and it is to them that such questions should be directed).

2013 (September Term)

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

United States v. Winckelmann, 73 M.J. 11 (when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF). 

2011 (September Term)

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

2008 (September Term)

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


2008 (Transition)

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

(in addition to issues of law, the scope of review at the court of criminal appeals extends to factual sufficiency and sentence appropriateness). 


(the decisions of the court of criminal appeals are subject to direct review in the CAAF on issues of law; cases in which the CAAF have granted review or have otherwise provided relief are subject to direct review in the Supreme Court by writ of certiorari).   


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


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


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


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


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


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


(even when remedies have been exhausted, the scope of collateral review outside the military justice system is constrained by the requirement to consider whether the military justice system has given full and fair consideration to the claims at issue; de novo review is appropriate only if the military justice system manifestly refused to consider those claims).

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


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

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

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

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


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


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

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


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


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

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

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

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

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

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

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