TRIAL STAGES: Appeals: Court of Appeals for the Armed Forces

2022 (October Term)

United States v. Gilmet, 83 M.J. 398 (the CAAF will decline to entertain an argument by the government that it failed to raise below). 

M.W. v. United States, 83 M.J. 361 (the CAAF considers de novo the question of whether it has jurisdiction). 

(like all federal courts, the CAAF has an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party). 

(in this case, Article 67, UCMJ, does not provide the CAAF with jurisdiction to review a petition filed by a victim of an offense; Article 67(a), UCMJ, grants the CAAF jurisdiction to review only three categories of cases, and this case does not fit into any of them; Article 67(a)(1), UCMJ, requires the CAAF to review all cases in which the sentence, as affirmed by a CCA, extends to death, but this case is not a capital case in which a sentence of death has been adjudged and affirmed; Article 67(a)(2), UCMJ, requires the CAAF to review all cases reviewed by a CCA which the JAG orders sent to the CAAF, but in this case, the JAG did not order the case sent to the CAAF for review; Article 67(a)(3), UCMJ, provides the CAAF with jurisdiction in all cases reviewed by a CCA in which, upon petition of the accused and on good cause shown, the CAAF has granted a review, but in this case, the victim, and not the accused, filed the petition; and no other provision in Article 67, UCMJ, grants jurisdiction to the CAAF). 

(although Article 6b(e)(3), UCMJ, requires the CAAF to give priority to those cases in which it reviews a decision of a CCA upon a petition for a writ of mandamus authorized by Article 6b(e), UCMJ, for a victim of an offense, this provision does not either expressly or implicitly grant jurisdiction to the CAAF to review such a petition filed by the victim of an offense; an instruction about how to exercise jurisdiction is different from a provision granting it).   

(the All Writs Act does not provide the CAAF with jurisdiction to grant a victim of charged offenses a writ of mandamus to challenge a military judge’s decision that the victim’s counsel could not communicate with the trial counsel over how the government might exercise challenges to some members; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; because Article 6b(e) is a unique grant of statutory authority that limits appellate jurisdiction to the CCA, a victim of an offense cannot use that article and the All Writs Act to artificially extend this Court’s existing statutory jurisdiction; as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants the CAAF the necessary jurisdictional authority to review a petition filed by a victim of an offense).

United States v. Smith, 83 M.J. 350 (when reviewing a decision of a CCA on a military judge’s discretionary ruling, the CAAF typically has pierced through that intermediate level and examined the military judge’s ruling; it then decides whether the CCA was correct in its examination of the military judge’s ruling). 

United States v. Shields, 83 M.J. 226 (when reviewing a CCA’s decision 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). 

Fink v. Y.B., 83 M.J. 222 (the CAAF has jurisdiction under Article 67(a)(3), UCMJ, to review a writ-appeal petition filed by an accused that seeks review of a decision of a CCA on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ). 

(the CAAF’s decision in Randolph v. HV, 76 M.J. 27, 30-31 (CAAF 2017) (holding that the CAAF did not have jurisdiction to hear the appeal filed by an accused that sought review of a CCA’s decision on a petition for extraordinary relief filed under Article 6b(e)(1), UCMJ) has been superseded by statute, namely, by an amendment to Article 67(c), UCMJ, in the 2017 NDAA; as amended, Article 67(c)(1)(B), UCMJ, expands the CAAF’s scope of review to act with respect to a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by a CCA). 

(the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review). 

(the amendment to Article 67(c), UCMJ, in the 2017 NDAA changed the CAAF’s jurisdiction; under the new Article 67(c)(1)(B), the CAAF is no longer limited to acting on the findings or sentence of a court-martial; it now may also address a military judge’s decision or order on interlocutory questions; accordingly, granting a writ-appeal filed by the accused to review a decision of a military judge on a matter such as the admissibility of evidence fits within the plain language of Article 67(a)(3) and (c)(1)(B), UCMJ). 

(if the victim of an offense challenges a decision or order of a military judge by petitioning a CCA for mandamus under Article 6b(e), UCMJ, and if the CCA affirms or sets aside the decision or order of the military judge, then the accused may petition the CAAF for review under Article 67(a)(3), UCMJ, and the CAAF may act with respect to the military judge’s decision or order under Article 67(c)(1)(B), UCMJ).

United States v. Steele, 83 M.J. 188 (whether an issue is waived or forfeited is an issue of law that the CAAF can decide).

United States v. McAlhaney, 83 M.J. 164 (the scope, applicability, and meaning of Article 66(d), UCMJ, is a matter of statutory interpretation that the CAAF reviews de novo). 

United States v. Behunin, 83 M.J. 158 (the CAAF’s review of decisions by the CCA’s on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; an abuse of discretion occurs when a CCA’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the CCA’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(in reviewing a CCA’s decision in a sentence disparity case, the CAAF examines three questions: (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 differences in the adjudged sentences).

United States v. Day, 83 M.J. 53 (the CAAF cannot review waived issues). 

United States v. Thompson, 83 M.J. 1 (although the CAAF does not review evidence for factual sufficiency, it retains the authority to review factual sufficiency determinations of the CCAs for the application of correct legal principles, but only as to matters of law). 

(in determining whether a CCA has applied correct legal principles, the CAAF starts with the rule that the CCAs are presumed to know the law and follow it). 

(when the record reveals that a CCA misunderstood the law, the CAAF remands for another factual sufficiency review under correct legal principles). 

(the CAAF also remands when it is an open question whether a CCA’s review under Article 66(d)(1), UCMJ, was consistent with a correct view of the law).

2021 (October Term)

United States v. Black, 82 M.J. 447 (the CAAF directly reviews a military judge’s decision when presented with an interlocutory appeal, and in such appeals, it reviews the evidence in the light most favorable to the prevailing party and is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

2020 (October Term)

United States v. Brubaker-Escobar, 81 M.J. 471 (CCAs are courts of limited jurisdiction, defined entirely by statute; the scope of that jurisdiction is a legal question that the CAAF reviews de novo).

(the CAAF reviews a CCA’s construction of statutes and executive orders de novo). 

United States v. Hernandez, 81 M.J. 432 (when CAAF reviews a lower court’s holding on the ruling of a trial court, it typically pierces through the intermediate level and examines the military judge’s ruling, and then it decide whether the CCA was right or wrong). 

United States v. Navarette, 81 M.J. 400 (historically, the CAAF has given preferential treatment to the question of mental responsibility of a military member, even though the matter was not litigated at trial). 

United States v. Guinn, 81 M.J. 195 (the CAAF generally reviews a CCA’s actions under Article 66(c), UCMJ, for an abuse of discretion, recognizing that a CCA has broad discretion in conducting its Article 66(c) review, and this includes the review of a CCA’s sentence appropriateness decision; however, the CAAF conducts a de novo review with respect to the scope and meaning of the CCA’s Article 66(c) authority).

(under Article 67(c), UCMJ, the CAAF has the responsibility (1) to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials, and (2) to ensure that the sentence is executed in a manner consistent with Article 55, UCMJ, and the Eighth Amendment). 

United States v. Cardenas, 80 M.J. 420 (an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act).   

2019 (October Term)

United States v. Blackburn, 80 M.J. 205 (when reviewing a CCA’s decision on a military judge’s ruling, the CAAF typically has pierced through that intermediate level and examined the military judge’s ruling, and then decided whether the CCA was right or wrong in its examination of the military judge’s ruling).

United States v. Bess, 80 M.J. 1 (where a CCA’s findings are neither clearly erroneous nor unsupported by the record, the CAAF defers to those factual findings). 

United States v. Wall, 79 M.J. 456 (the CAAF has a duty to review the record in all cases reviewed by a CCA in which the accused’s petition establishes good cause; the CAAF may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the CCA). 

(where the CCA set aside a sentence as incorrect in law to effectuate the possibility of a rehearing on findings and sentence, the CAAF had jurisdiction over the case and could determine the scope of the CCA’s authority with respect to the remand). 

(the ripeness doctrine originates in the Constitution’s Article III case or controversy language; nevertheless, Article I courts, such as the CAAF, generally adhere to this doctrine and ordinarily decline to consider an issue that is premature; if the appeal is not ripe, it deprives the court of subject matter jurisdiction and must be dismissed). 

(in this case, where the CCA affirmed a rape conviction, set aside a sexual assault conviction and the sentence, and remanded the case to the convening authority to either (1) order a rehearing on the sexual assault offense and the sentence, (2) dismiss the sexual assault offense and order a rehearing on the sentence, or (3) dismiss the sexual assault offense and reassess the sentence, affirming no more than a DD, confinement for 10 years, total forfeitures, and reduction to E-1, the issue of whether the CCA was authorized to provide what amounted to an advisory opinion by declaring what sentence to confinement it would accept as appropriate was ripe for review by the CAAF because (1) the issue was a purely legal one, which could be resolved without further proceedings, (2) the adverse effect of the CCA’s ruling was neither remote nor abstract where the CCA sent a clear message to the convening authority about what sentence to confinement it would find appropriate -- a message that could unduly influence the independent judgment of the convening authority, and (3) resolution of the issue promoted judicial economy). 

United States v. Hennis, 79 M.J. 370 (a trial court’s resolution of a question of actual bias with respect to a challenge for cause is entitled on direct appeal to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion).  

(the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review).

2018 (October Term)

United States v. English, 79 M.J. 116 (exceptions and substitutions under RCM 918(a) may not be made at the appellate level, and reviewing courts may not revise the basis on which an appellant is convicted simply because the same result would likely obtain on retrial). 

(the scope of an appellate court’s authority is a legal question that a superior appellate court reviews de novo). 

United States v. McGriff, 78 M.J. 487 (denial of a petition, although it allows the decision below to stand, does not suggest that the CAAF either agree or disagree with the merits of a lower court’s resolution of the case). 

(denial of a petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of an issue). 

United States v. Tovarchavez, 78 M.J. 458 (it is for the CAAF, not the CCA, to overrule its own precedent).

(absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent). 

(in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test (if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b)).

2017 (October Term)

United States v. Carpenter, 77 M.J. 285 (when reviewing a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, the CAAF pierces the CCA’s opinion and examine the military judge’s ruling directly). 

United States v. Katso, 77 M.J. 247 (whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certification to the CAAF under Article 67(a)(2), UCMJ, is a question of law, that the CAAF reviews de novo.). 

(Article 57a(c), UCMJ, governs the treatment of convicted prisoners where the sentence to confinement has been ordered executed, but in which review of the case under Article 67(a)(2)) is pending; Article 57a(c), UCMJ, permits the Secretary concerned to defer further service of the sentence to confinement while that review is pending; in other words, convicted prisoners mayseek deferral of confinement pending review of a decision favorable to the accused certified to the CAAF by TJAG and the relevant Secretary may grant such deferral and order the prisoner released).

United States v. Jerkins, 77 M.J. 225 (the CAAF is particularly vigilant where an attempt to unlawfully influence the results of the court-martial involves an accused’s commanding officer). 

United States v. Mangahas, 77 M.J. 220 (the CAAF is generally not free to digress from applicable Supreme Court precedent on matters of constitutional law; absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent). 

United States v. Honea, 77 M.J. 181 (the CAAF is authorized to act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; where the record of trial fails to adequately demonstrate the charge of which appellant was convicted, the CAAF cannot conduct a proper review of the case under Article 67, UCMJ). 

(the CAAF cannot authorize a rehearing on a charge or specification where a material variance deprives an accused of the fundamental right to due process).

(when an appellant’s LIO conviction is not an LIO of the greater charged offense, the CAAF has repeatedly declined to authorize a rehearing). 

United States v. Riesbeck, 77 M.J. 154 (it is incumbent upon the CAAF to scrutinize carefully any deviations from the protections designed to provide an accused servicemember with a properly constituted panel). 

United States v. Jacobsen, 77 M.J. 81 (military courts, as Article I courts, are courts of special jurisdiction and their authority to act is conferred and strictly confined by statute). 

United States v. Hennis, 77 M.J. 7 (CAAF lacks constitutional, statutory, or regulatory authority to provide appellant with appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, or with funding for learned counsel, a mitigation specialist, or a fact investigator). 

(CAAF does not have the authority to mandate the appointment of an appellate defense team pursuant to the provisions of the Army’s capital litigation regulation which are hortatory, rather than mandatory and do not create a binding right). 

(CAAF does not have the authority to mandate funding for learned appellate counsel in this capital case; there currently is no requirement for the appointment of learned counsel knowledgeable in the law applicable to capital cases in military capital cases). 

(CAAF reviews lower court rulings of denials of requests for experts; it also reviews rulings on whether the expert assistance provided by the government is competent).

United States v. Gray, 77 M.J. 5 (CAAF lacks jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ; there is no statutory authority to provide extraordinary relief for a capital case that is final for all purposes under the UCMJ). 

2016 (October Term)

United States v. Davis, 76 M.J. 224 (it is the CAAF’s prerogative to overrule its own decisions).

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (the CAAF defers to a military judge’s factual findings unless they are clearly erroneous or unsupported by the record; the same deference applies to a CCA’s factual findings).

Howell v. United States, 75 M.J. 386 (CAAF has statutory jurisdiction to review the decision of a CCA under Article 67, UCMJ; Article 67(a)(2), UCMJ, provides that CAAF shall review the record in all cases reviewed by a CCA which the JAG orders sent to CAAF for review). 

(the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court). 

EV v. United States, 75 M.J. 331 (as a federal court of appeals inferior to the Supreme Court, CAAF’s jurisdiction and, indeed, its existence are wholly dependent upon statutes enacted by Congress in pursuance of its Article I power to make rules for the governance of the land and naval forces). 

(in this case, where an alleged sexual assault victim seeks a writ of mandamus from CAAF to correct an alleged abuse of discretion by the military judge relating to the release of certain of her mental health records to the defense, and where the CCA, to whom the petition was first directed under Article 6b(e), UCMJ, denied relief, CAAF lacks jurisdiction to decide the petition on the merits; Article 6b, UCMJ, is quite straightforward; it is a clear and unambiguous grant of limited jurisdiction to CCAs to consider petitions by alleged victims of sexual assault for a writ of mandamus to require a court-martial to comply with MRE 513, relating to the psychotherapist-patient privilege and MRE 412, relating to the admission of evidence regarding a victim’s sexual background; there is no mention whatsoever of CAAF; Congress having legislated in this area and bestowed certain third-party rights on alleged victims, CAAF must be guided by the choices Congress has made; Congress certainly could have provided for further judicial review in this novel situation, but it did not; Congress having now legislated in the area, CAAF is bound by the choices it made).

United States v. Clark, 75 M.J. 298 (the CAAF is statutorily limited to consideration of questions of law in its review of decisions of the CCAs; in any case reviewed by it, the CAAF may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the CCA; the CAAF shall take action only with respect to matters of law; Congress has limited the CAAF to correction of errors of law and the CAAF’s jurisdiction did not extend to questions of fact; thus, factual determination powers of the CCAs were beyond the CAAF’s review, absent arbitrary or capricious action; however, this does not mean that the statutory powers of the CCAs are wholly insulated from judicial review; issues of legal, as opposed to factual, sufficiency have always been within the remit of the CAAF; and the CAAF has the prerogative of determining on which side of the legal/mixed/factual divide an issue properly falls; the labeling of the issue by the CCA has been understood from the beginning not to be dispositive; finally, the CAAF retains the authority to review factual sufficiency determinations of the CCAs for the application of correct legal principles, but only as to matters of law). 

(appellate military judges are presumed to know the law and apply it correctly). 

United States v. Gay, 75 M.J. 264 (CAAF reviews a CCA’s sentence appropriateness determination for abuse of discretion). 

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).

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 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). 

(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). 

 
2007
 

2006

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).

2005

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). 

2004

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).

2003

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).

2002

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).

2001

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).

2000

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).

1999

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)).