Generally:
2023 (October Term)
United States v. Parino-Ramcharan, 84 M.J. 445 (in this case, the CCA had jurisdiction over appellant's appeal under Article 69(d), UCMJ).
United States v. Brown, 84 M.J. 124 (Article 69(e), UCMJ, precludes the CCA from factfinding).
2022 (October Term)
United States v. Steele, 83 M.J. 188 (if an accused raises an issue for the first time on appeal, a CCA has discretion to determine the circumstances, if any, under which it will apply waiver or forfeiture).
(the power of a CCA to overlook waiver and forfeiture, if it so chooses, stems from the language of Article 66(c), UCMJ, which directs a CCA to affirm only those findings and sentences that it determines, on the basis of the entire record, should be approved).
(although a CCA may choose to review a waived issue, a CCA cannot refuse to review an issue that was not waived; similarly, although a CCA may use its power under Article 66(c), UCMJ, to overlook a forfeiture, it cannot refuse to apply, at a minimum, plain error review).
(if an issue is not waived, then the CCA must review the issue, either for error or for plain error; but if an issue is waived, or no relief is available under plain error review, then the CCA still has discretion under Article 66, UCMJ, to overlook the waiver or forfeiture and address the issue; in deciding how to exercise this discretion, the CCA may consider issues of cause and prejudice).
(a CCA may select its own standard for exercising its discretion under Article 66(c), UCMJ, to review waived issues or forfeited issues where there is no plain error; if it so chooses, the CCA may require a showing of cause and prejudice before it will review such issues).
(in this case, if appellant did not waive his constitutional challenge to the indecent exposure offense, then the CCA should have considered it either for error or plain error; on the other hand, if appellant did waive the issue, then the CCA was under no obligation to review the issue at all, but it could review the issue in the exercise of its discretion under Article 66(c), UCMJ).
(if the CCA determines that a constitutional challenge to the indecent exposure issue was waived, the CCA may choose not to review it further; if the CCA finds that the issue was forfeited, but not waived, then at a minimum the CCA must review it for plain error; in either case, the CCA has discretion to grant relief under its Article 66, UCMJ, powers, notwithstanding a waiver or forfeiture).
(in deciding whether an appellant’s argument was waived or forfeited, the CCA may consider the Rules for Courts-Martial, its own appellate rules, and other principles of appellate litigation established by precedent).
United States v. McAlhaney, 83 M.J. 164 (a CCA may affirm only such findings of guilty, and the sentence or such part or amount of the sentence as it finds correct in law and fact, and which it determines on the basis of the entire record, should be approved; these three components of the CCA’s Article 66(d), UCMJ, authority are commonly referred to as legal sufficiency, factual sufficiency, and sentence appropriateness).
(under Article 66(d), UCMJ, the CCA conducts a de novo review of the record for legal sufficiency, factual sufficiency, and sentence appropriateness).
United States v. King, 83 M.J. 115 (a CCA cannot consider matters outside the entire record, but a CCA may attach documents when doing so is necessary for resolving issues raised by materials in the record).
(in this case, where the record did not provide the CCA with information about the circumstances under which a panel member had been relieved or excused and the documents proposed to be attached to the record were necessary to resolve the question of whether the panel was improperly constituted, the CCA did not abuse its discretion by attaching relevant materials that were outside the record to resolve appellant’s member selection issue).
2021 (October Term)
United States v. Guyton, 82 M.J. 146 (a CCA may act only with respect to the findings and sentence as approved by the convening authority; in this case, the CCA could not approve a sentence that included forfeiture of all pay and allowances where the convening authority did not approve the forfeiture portion of appellant’s sentence).
United States v. Anderson, 82 M.J. 82 (a military appellant’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion; the Courts of Criminal Appeals’ unique powers and responsibilities call for, if anything, even greater diligence and timeliness than is found in the civilian system; additionally, the Due Process Clause guarantees a constitutional right to a timely review).
2020 (October Term)
United States v. Brubaker-Escobar, 81 M.J. 471 (in any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part; however, depending upon the date that the charges were preferred or referred and depending upon the sentence that was adjudged, such an error does not necessarily deprive a CCA of jurisdiction).
(CCAs are courts of limited jurisdiction, defined entirely by statute).
(the new version of Article 66, UCMJ, 10 USC § 866 (2018), is applicable to those cases that were preferred or referred on or after January 1, 2019; the new version automatically provides the CCAs with jurisdiction when the military judge enters a judgment into the record that includes a sentence of a bad-conduct discharge).
United States v. Navarette, 81 M.J. 400 (in this case, the CCA abused its discretion by denying appellant’s request for a post‑trial RCM 706 inquiry where appellant provided substantial evidence of his impaired mental health that shows his ability to participate in the proceedings was fairly debatable; this evidence included proof of his multiple mental illness diagnoses, manic episodes, hospitalizations, suicide attempts, and a major psychiatric relapse, as well as the concerns expressed by his counsel).
United States v. Willman, 81 M.J. 355 (in general, Article 66(c), UCMJ, restricts appellate review performed by the CCAs to consideration of the entire record of the case before them; however, CCAs do have authority to consider evidence entirely outside the record when considering an appellant’s cruel and unusual punishment claims raised under the Eighth Amendment; but the practice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment).
(CCAs are not precluded from considering prison conditions when reviewing a sentence under Article 66(c), UCMJ, if the record contains information about those conditions).
(CCAs are authorized to supplement the record to decide any issues that are raised, but not fully resolved, by evidence in the record).
(consistent with the plain language of Article 66(c), UCMJ, and US v. Jessie (79 MJ 437 (CAAF 2020)), CCAs do not have authority to consider outside-the-record evidence submitted in support of an appellant’s Eighth Amendment or Article 55, UCMJ, claims when performing sentence appropriateness review under Article 66(c), UCMJ; in other words, once a CCA consider an appellant’s outside-the-record declaration to decide his cruel and unusual punishment claims, it may not consider the declaration to perform its Article 66(c), UCMJ, sentence appropriateness review).
(outside-the-record materials considered to resolve an appellant’s cruel and unusual punishment claims are not part of the entire record of trial unless they address a matter in the record of trial).
United States v. Guinn, 81 M.J. 195 (United States v. Grostefon (12 MJ 431 (CMA 1982)) requires a CCA to acknowledge that it has considered issues enumerated by the accused and its disposition of them, even if those issues seem facially frivolous).
United States v. Brown, 81 M.J. 1 (Congress created a bifurcated statutory scheme for the appellate review of completed courts-martial, depending upon the sentence approved by the convening authority; a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; in this case, because the accused’s sentence was below the Article 66(b), UCMJ, threshold for mandatory review at the lower court, the Article 66(b), UCMJ, pathway to appellate review was unavailable to him; however, Article 69, UCMJ, provided a second pathway to review before a court of criminal Appeals for an accused convicted and sentenced at a special court-martial; cases not reviewed by the lower court pursuant to Article 66(b), UCMJ, such as the instant case tried at a special court-martial, can still be reviewed by the Judge Advocate General upon application of the accused for, inter alia, error prejudicial to the substantial rights of the accused, and the Judge Advocate General can then choose whether to send the case to the lower court for review under Article 66, UCMJ).
(in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review).
(for courts-martial referred on or after January 1, 2019, pursuant to Article 66(b)(1)(D), an accused is entitled to have the courts of criminal appeals review his case with respect to matters of law if the accused applies for review from a decision of TJAG under Article 69(d)(1)(B) and the application has been granted by the court; thus, it is no longer the case that only those cases that the Judge Advocate General elects to refer to the court of criminal appeals under Article 69(d), UCMJ, may be heard by the lower court).
United States v. Cardenas, 80 M.J. 420 (courts of criminal appeals may remedy multiplicity error identified on appeal by allowing the government to elect which multiplicious conviction to retain and which to dismiss).
(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. Rich, 79 M.J. 472 (when a service court of criminal appeals is evenly divided on a question of law, the result is an affirmance of the lower court’s decision).
United States v. Gonzalez, 79 M.J. 466 (the CCA prejudicially erred when after setting aside one of appellant’s convictions and the sentence, it remanded the case to the convening authority with instructions to take one of three possible actions on remand, one of which included dismissing the specification at issue and reassessing the sentence with a sentence cap of a DD and confinement for six years; it also prejudicially erred in conducting a sentence reassessment in a footnote wherein it concluded that the sentence adjudged, absent the one conviction, would have been at least a DD and confinement for 6 years).
(the right to a proper and complete Article 66, UCMJ, review is a substantial right of an accused).
(in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence).
United States v. Wall, 79 M.J. 456 (in a case referred to it, the CCA may act only with respect to the sentence as approved by the convening authority; in this case, by setting aside appellant’s approved sentence and remanding, the CCA extinguished the approved sentence and, thereby, its authority to further act on the sentence until the case returned from the convening authority).
(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 CCA was not authorized to provide what amounted to an advisory opinion by declaring what sentence to confinement it would accept as appropriate; such an advisory opinion would improperly influence what is supposed to be an independent assessment by the convening authority).
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. Muller, 79 M.J. 359 (Rule 15.5 of the United States Air Force Court of Criminal Appeals Rules of Practice and Procedure, which allows counsel 10 days in a remanded case to submit supplemental pleadings, is invalid because it directly conflicts with the Joint Courts of Criminal Appeals Rules of Practice and Procedure 15(b), which allows 60 days for supplemental pleadings, and because it conflicts with United States v. Gilley, 59 M.J. 245 (CAAF 2004)).
2018 (October Term)
United States v. English, 79 M.J. 116 (in performing its review under Article 66(c), UCMJ, a court of criminal appeals may narrow the scope of an appellant’s conviction to that conduct it deems legally and factually sufficient).
(pursuant to Article 59(b), UCMJ, a court of criminal appeals may affirm a lesser included offense).
(a court of criminal appeals cannot find the unlawful force as alleged in a rape specification factually insufficient, change the scope of the offense from the specific force alleged and litigated at the court-martial to a generic and thus broader charge that was not presented at trial, and still affirm the finding based on a theory of criminality not presented at trial; such action both exceeds the court’s appellate authority and violates appellant’s constitutional due process rights).
(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).
(although a CCA has broad discretion when it reviews the record of trial under Article 66, UCMJ, that discretion is not unlimited; Article 66(c), UCMJ, requires a service court to conduct a plenary review of the record and affirm so much of the findings and sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; relatedly, Article 59(b), UCMJ, grants a reviewing court the discretion to affirm, instead, so much of the finding as includes a lesser included offense; but there is no authority, statutory or otherwise, that permits a CCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial).
(when a CCA narrows the scope of language in a specification to affirm only so much as is correct in law and fact rather than broadening the scope of the language, such a change does not run afoul of due process concerns).
(expanding the scope of a specification on appeal beyond that which was presented to the trier of fact is akin to the violation of due process that occurs when an appellate court affirms a conviction based on a different legal theory than was presented at trial).
(in this case, given the government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact).
(in this case, the CCA, through exception to the specification on appeal, affirmed a charge with a broader factual basis than the theory the government originally charged and proceeded on at trial; such post hoc modification is an error of constitutional magnitude that offends the most basic notions of due process).
United States v. Tovarchavez, 78 M.J. 458 (it is for the CAAF, not the CCA, to overrule its own precedent).
2017 (October Term)
United States v. Hardy, 77 M.J. 438 (under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver).
(the CCA is well within its authority to determine the circumstances, if any, under which it will apply waiver or forfeiture to a UMC issue, and it may apply the following five factors in exercising its Article 66(c), UCMJ, powers: (1) did appellant object at trial that there was an unreasonable multiplication of charges and/or specifications; (2) is each charge and specification aimed at distinctly separate criminal acts; (3) does the number of charges and specifications misrepresent or exaggerate appellant’s criminality; (4) does the number of charges and specifications unreasonably increase appellant’s punitive exposure; and (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges).
United States v. Kelly, 77 M.J. 404 (as Article I courts established at the behest of Congress by the Judge Advocates General, CCAs enjoy limited jurisdiction, and are circumscribed by the Constitution to the powers specifically granted to them by statute).
(given its awesome, plenary, de novo power of review, a CCA has a carte blanche to do justice).
United States v. Katso, 77 M.J. 247 (in this case, where the accused was an adjudged and sentenced prisoner whose sentence to confinement had been ordered executed by the CA but where the CCA had set aside the accused’s conviction and sentence and the government had certified the case to the CAAF, the CCA erred in applying the procedures and penalties of RCM 305 crafted for pretrial confinement to the accused’s post-trial confinement while the government appeal was pending; specifically, the CCA erred in determining that the accused was entitled to a sua sponte continued confinement hearing within seven days of the government’s certification to the CAAF and day-for-day credit for each day served in confinement between the certification and the date of the continued confinement hearing).
United States v. Riesbeck, 77 M.J. 154 (judges on the service courts of criminal appeals must appropriately address unlawful command influence whenever they encounter it in specific cases).
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).
2016 (October Term)
United States v. Carter, 76 M.J. 293 (appointment of a CCA judge to sit simultaneously on the United States Court of Military Commission Review does not violate the Appointments Clause, nor does it interfere with an otherwise valid statutory authorization to serve on a CCA; a judge may simultaneously sit on a CCA and on the USCMCR).
(if the CCA sets aside the findings and sentence, Article 66(d), UCMJ, presents a binary choice: a CCA may order a rehearing and, if it does not order a rehearing, it shall dismiss the charges; in this case, where the CCA did not order a rehearing and instead set aside and dismissed the charges, the convening authority was not authorized to order any further proceedings).
(the text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing; the statute says that a CCA may order a rehearing; it does not say that it must).
United States v. Shea, 76 M.J. 277 (a CCA is a court of limited jurisdiction and possesses only that power authorized by the Constitution and statute).
(nothing in the UCMJ or rules of procedure provide an accused the right to select a CCA panel or have his case considered by any particular panel; by law, the court may review cases en bancor in panels, and the chief judge of the court has broad authority to assign, remove, and reassign judges to cases on the court’s docket).
(many reasons exist for a change of assignment of cases from one CCA panel to another, ranging from workload of particular panels to reassignment of judges from a panel; the consideration of an accused’s case by any properly constituted panel satisfies Article 66, UCMJ; moreover, an accused attains no right to have his case considered by any particular panel either before or after the first random assignment by the office of the clerk).
(when a case is being reviewed by the CCA on remand, an accused does not possess a right to a panel composed of the same appellate judges who originally reviewed his case).
United States v. Davis, 76 M.J. 224 (it is simply not for a service court of criminal appeals to act on the assumption that an opinion of the CAAF has been implicitly overruled; overruling by implication is disfavored, and the service courts of criminal appeals must adhere to the CAAF’s precedent even when they believe that subsequent decisions call earlier decisions into question; if a service court of criminal appeals is convinced that the underlying logic of a CAAF opinion has changed in the meantime, its recourse is to express that viewpoint and to urge the CAAF’s reconsideration of its precedent; beyond that, however, the service court is bound either to follow the existing CAAF precedent or to distinguish it; it is the CAAF’s prerogative to overrule its own decisions).
United States v. Swift, 76 M.J. 210 (Article 66(c), UCMJ, requires the service courts to conduct a plenary review of the record and 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; a complete Article 66, UCMJ, review is a substantial right of an accused; the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved).
United States v. Ortiz, 76 M.J. 189 (the appointment to the US Court of Military Commissions Review (USCMCR) of an officer who had previously been detailed to serve as an appellate military judge on the CCA did not terminate his military commission and did not effect his ability to serve on the CCA; the applicable statute, 10 USC § 973(b) (2012), which limits an officer’s ability to accept or exercise the functions of a civil office, may impact upon whether the officer could hold office at the USCMCR, but it does not by its terms terminate the officer’s position as an appellate military judge on the CCA, and in any event, the statute saves the officer’s actions in appellant’s case).
(given a military officer’s status as a principal officer of the US Court of Military Commission Review (USCMCR), that officer’s simultaneous service on USCMCR and the CCA did not violate the Appointments Clause of the Constitution; an officer’s status as a principal officer on the USCMCR does not carry over to the CCA and invest him with authority or status not held by ordinary CCA judges; when that officer sits as a CCA judge, he is no different from any other CCA judge under Article 66).
United States v. Rosario, 76 M.J. 114 (in contrast to most civilian appellate courts, courts of criminal appeals have a statutory mandate to conduct a de novo review of both the legal and factual sufficiency of a conviction).
(when the same evidence is offered at trial to support two different offenses, a court of criminal appeals is not necessarily precluded from considering the evidence that was introduced in support of the charge for which the appellant was acquitted when conducting its Article 66(c), UCMJ, legal and factual sufficiency review of the charge for which the appellant was convicted; appellants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate review).
United States v. Dalmazzi, 76 M.J. 1 (the issue of whether a military officer who served on the CCA panel that affirmed appellant’s conviction was statutorily or constitutionally prohibited from simultaneously serving as an appellate military judge on the CCA and as a judge on the United States Court of Military Commission Review was moot, where although the military judge took the oath of office as a USCMCR appellate judge two weeks before release of the decision in appellant’s case, his appointment to the USCMCR only became effective when the President signed his commission, which occurred two weeks after the decision affirming appellant’s conviction; actions that the officer took as a judge on the USCMCR before the President issued his commission were not public acts that evidenced his appointment; it is the President who must perform some public act that evinces the appointment, not the purported appointee; other than the commission signed by the President two weeks after the CCA’s decision in this case, there was no evidence that the President had appointed this officer to the USCMCR; therefore, because the officer had not yet been appointed a judge of the USCMCR at the time the judgment in appellant’s case was released, the issue as to the judge’s qualifications was moot).
2015 (September Term)
Howell v. United States, 75 M.J. 386 (the jurisdiction of CCAs is generally limited to appeals by the United States under Article 62, UCMJ, and review of the findings and sentences of certain courts-martial under Article 66(b), UCMJ).
(under the circumstances of this case, the CCA had jurisdiction under the All Writs Act to entertain a government’s petition for an extraordinary writ to remedy an alleged Article 13, UCMJ, violation; based on the CCA’s statutory jurisdiction under Article 66, UCMJ, jurisdiction under the All Writs Act for CCAs included matters that had the potential to directly affect the findings and sentence; because the government’s specific complaint in this case regarding the military judge’s ruling on confinement credit under Article 13, UCMJ, directly affected the findings and sentence, the CCA had jurisdiction to issue a writ).
(the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court).
United States v. Witt, 75 M.J. 380 (military appellate courts have the inherent authority to reconsider their own decisions; thus, a CCA sitting en banc has the authority to reconsider its own decision, even though the composition of the court has changed).
(how an appellate judge votes on a motion to reconsider is not part of the deliberative process and is subject to discovery).
(the refusal of an appellate judge who is present for duty and not disqualified to participate amounts to disqualification; once disqualified, the judge is prohibited from further participation in the case).
(any judge present for duty at the time the first opinion issued who did not participate in that decision is disqualified from later participation in the case).
(in this case, judges who were present for duty at the time the first decision was issued but did not participate in that decision were de facto disqualified from further participation in the case).
(the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors: the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process).
(in this case, where the error resulted in appellant’s vacated death sentence being affirmed, the participation of disqualified judges in the reconsideration process produced a significant risk of undermining the public’s confidence in the judicial process, and thus prejudiced appellant’s substantial rights).
EV v. United States, 75 M.J. 331 (under Article 6b(e), UCMJ, the victim of a sexual assault may petition the CCA for a writ of mandamus to require a court-martial to comply with MRE 513, relating to the psychotherapist-patient privilege, and with MRE 412, relating to the admission of evidence regarding a victim’s sexual background).
United States v. Clark, 75 M.J. 298 (the CCA is empowered, and indeed required, to determine that the findings and sentence are correct in fact as well as law; the CCA may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; in considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses).
(appellate military judges are presumed to know the law and apply it correctly).
United States v. Gay, 75 M.J. 264 (under Article 66(c), UCMJ, a CCA may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved).
United States v. Chin, 75 M.J. 220 (pursuant to its review under Article 66(c), UCMJ, a CCA may decide not to approve certain specifications because they constituted an unreasonable multiplication of charges, despite an accused’s PTA that waived all waivable motions).
(a case is subject to a complete appellate review by a CCA under Article 66(c), UCMJ, unless, after trial and sentencing, an accused waives appellate review altogether pursuant to Article 61, UCMJ).
(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).
(a complete Article 66, UCMJ, review is a substantial right of an accused, and a CCA may not rely on only selected portions of a record or allegations of error alone).
(if the sentence approved by the convening authority includes capital punishment, a punitive discharge, or confinement for one year or more, Article 66(c), UCMJ, provides for mandatory review, and the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved; there is no waiver exception in the statute, nor does reading one in make sense given the existence of Article 61, UCMJ, and its associated rules).
(while an accused is prevented from raising an issue by a waive all waivable motions provision, an accused has no authority to waive a CCA’s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether — and that election cannot be made until after the trial and sentencing; because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete appellate review, that right cannot be waived in a PTA, even when a “waive all waivable motions” provision is given full effect; it would defy logic to conclude that while an accused may not waive the right to complete appellate review as part of a PTA, she can nonetheless sidestep Article 61, UCMJ, and the temporal protections built into it by virtue of a waive all waivable motions provision in a PTA, permitting an accused to, in effect, waive the right to complete appellate review as part of a PTA; Article 66(c), UCMJ, cannot be construed in such a fashion that the particular and protective waiver procedure provided by Article 61, UCMJ, and its accompanying rules can be circumvented in this way, which would be at odds with the overall structure of the UCMJ; either a case is subject to a complete appellate review under Article 66(c), UCMJ, or it is not because such review was waived — after trial and sentencing — under Article 61, UCMJ).
(if an appellant elects to proceed with Article 66, UCMJ, review, then the CCA is commanded by statute to review the entire record and approve only that which should be approved; a fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error).
(waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or the CAAF; and a waive all waivable motions provision or unconditional guilty plea continues to serve as a factor for a CCA to weigh in determining whether to nonetheless disapprove a finding or sentence; Article 66, UCMJ, is neither limitless nor standardless, and CCAs are presumed to know the law and follow it).
(in this case, where the CCA provided a detailed explanation for disapproving and merging offenses despite the accused’s waiver of all waivable motions, holding that this deviation from its past treatment and application of waiver was warranted by the facts of this case in that the charging scheme grossly exaggerated the accused’s criminality, it disapproved specifications based on a legal standard, citing the fact that the unreasonable multiplication of charges was so plainly presented in this case; that rationale is based on the legal standard the CAAF gave it, and the CCA’s action was well within the limitations of its Article 66(c), UCMJ, review).
United States v. Atchak, 75 M.J. 193 (the plain language of Article 66(d), UCMJ, provides that when a CCA sets aside findings, it may order a rehearing, and if it does not, it shall order that the charges be dismissed; the government’s invitation to transform the permissive statutory “may” into a mandatory “must” is declined; the only command under Article 66(d), UCMJ, is that a CCA must dismiss charges when it does not authorize a rehearing on a finding it has disapproved; the text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing; the statute says that a CCA may order a rehearing; it does not say that it must; “may” is a permissive term, and indicates that Congress intended to provide the CCAs with discretion on this point).
(in this case, a CCA did not err in setting aside and dismissing specifications of aggravated assault without authorizing the convening authority to order a rehearing for the LIOs of assault consummated by a battery; given the CCA’s assessment of the state of the record on the question of consent, the state of the law on consent as a defense to assault consummated by a battery, and the CCA’s ability to independently assess the facts, the CCA’s decision not to order a rehearing to permit the government to try and prove the LIO of assault consummated by a battery was not an abuse of discretion or miscarriage of justice).
United States v. Gifford, 75 M.J. 140 (the CCA erred in concluding that a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption did not include a mens rea requirement with respect to age where (1) a mens rea requirement is the rule rather than the exception in criminal offenses, even in those instances when a statute is silent on that point, (2) there was a lack of any overt evidence that the commander intended to create a public welfare offense, and (3) such an intent on the commander’s behalf cannot be inferred, given the historical context of alcohol offenses, the underlying character of the offense, and the gravity of the punishment; in other words, the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of appellant’s conviction for violating a general order was whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under 21 years of age).
(the level of mens rea that the CCA should have used in the course of its Article 66(c), UCMJ, review of a conviction for violating a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption was recklessness where (1) recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct, (2) intuiting recklessness into the general order is the greatest stride a court can take before stepping over the line that separates interpretation from amendment, and (3) both the Model Penal Code and state courts across the country confirm the propriety of a recklessness standard in this context).
United States v. Captain, 75 M.J. 99 (a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority).
2014 (September Term)
United States v. Arness, 74 M.J. 441 (the CCAs are courts of limited jurisdiction, defined entirely by statute).
(the limited jurisdiction of the CCAs is spelled out in two statutes, Articles 66 and 69, UCMJ).
(under Article 66, UCMJ, the CCA is required to review the record in each trial by court-martial in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; general court-martial cases not meeting the minimum requirements of Article 66 must be reviewed in the office of the JAG, absent an accused’s waiving or withdrawing from appellate review; if any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the JAG may modify or set aside the findings or sentence or both; under limited circumstances, the JAG may also modify or set aside the findings or sentence of cases not reviewed under Article 66 or Article 69).
(under Article 69, UCMJ, the CCA may review any court-martial case which is subject to action by the JAG under Article 69 and is sent to the CCA by order of the JAG and it may review any action taken by the JAG under this Article 69 in such case; however, review in such cases is limited to matters of law, unlike the CCA’s normal review under Article 66(c)).
(where appellant’s approved general court-martial sentence was less than the statutory minimum required to trigger direct review by the CCA and after the JAG determined under Article 69(a), UCMJ, that the findings and sentence were supported in law, and elected not to send the case to the CCA for review under Article 69(d), the CCA concluded that it had jurisdiction to consider appellant’s petition for a writ of error coram nobis; this was error, even though it denied appellant relief; consideration of extraordinary relief is not in aid of the CCA’s jurisdiction, where the CCA had none in the first place; Article 69 does not authorize the CCA to review every case which is subject to action by the JAG pursuant to Article 69; instead, it grants the CCA authority to review any action taken by the JAG under Article 69 in any case that the JAG elects to refer to the CCA; because in this case, the JAG did not refer appellant’s case to the CCA - a statutory prerequisite for its review - the CCA was without jurisdiction to review it; to the extent that McPhail v. US, 1 MJ 457 (CMA 1976) and Unger v. Ziemniak, 27 M.J. 349 (CMA 1989), Dew v. US, 48 MJ 639 (A Ct Crim App 1998), are inconsistent with the opinion in this case, they are overruled).
United States v. Akbar, 74 M.J. 364 (the CCAs have discretion to determine how additional evidence, when required, will be obtained; they may determine that evidence is required by affidavit, testimony, stipulation, or a factfinding hearing).
(where appellant alleges ineffective assistance of counsel on appeal, the CCA is authorized to compel trial defense counsel to submit affidavits).
(in this case, where appellant alleged ineffective assistance of counsel on appeal, absent any authority prohibiting the use of joint affidavits, the CCA did not abuse its discretion by authorizing trial defense counsel to submit a joint affidavit).
(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 (the CCAs have the legal authority to order sentence-only rehearings under Article 66(d), UCMJ).
(Subsection (d) of Article 66, UCMJ, addresses the scope of the CCA’s authority to order rehearings and provides that if a CCA sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing; however, if it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed).
(with respect to the prior precedent that authorized the CCAs the legal authority to order sentence-only rehearings under Article 66(d), UCMJ, the process may be cumbersome, but is not unworkable; also, the prior precedent is not poorly reasoned, and there have been no intervening events; in fact, the power of the CCAs to order sentence-only rehearings has been recognized by both the executive and legislative branches of government; in addition, servicemembers have come to rely on the authority of CCAs to order sentence-only rehearings where it has been accepted procedure in the military justice system for over sixty years; finally, because the prior procedural precedent has provided a predictable and consistent appellate remedy for both litigants and lower courts to follow for years, changing precedent would run the risk of undermining public confidence; as such, the government has failed to establish sufficient justification to depart from the doctrine of stare decisis).
United States v. Bennitt, 74 M.J. 125 (though it has significant factfinding powers under Article 66, UCMJ, a CCA is not free to revise the basis on which an accused is convicted simply because the same result would likely obtain on retrial).
(the CCA can affirm only such findings of guilty as it finds correct in law and fact, and cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty).
(after appellant’s conviction for involuntary manslaughter was set aside and dismissed as legally insufficient, the CCA reassessed appellant’s sentence and reimposed the same sentence appellant had received before his appeal; the CCA explained that evidence of the victim’s death was admissible aggravation evidence because appellant’s conviction of oxymorphone distribution on divers occasions included distribution of the drug to the deceased victim; however, the CCA erred as a matter of law in stating that appellant was convicted of distribution to deceased victim as part of his distribution conviction; while the CCA enjoys broad discretion in reassessing a sentence, it cannot base its reassessment on an erroneous statement of law; therefore the decision of the CCA must be reversed and remanded for sentence reassessment or a sentence rehearing).
United States v. Jones, 74 M.J. 95 (the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient; the doctrine does not apply when the officer’s deficiency is fundamental).
(in this case, a judge on the CCA was purportedly appointed as an appellate military judge first by the Judge Advocate General of the Air Force, and then by the Secretary of Defense; these appointments were invalid under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2; because the defect in this appointment was not merely technical, but fundamental, the de facto officer doctrine cannot apply; defects that are “merely technical” and may be forfeited if not timely raised; however, those defects that embody a strong policy concerning the proper administration of judicial business are not forfeited if not timely raised; here, the error was of constitutional dimensions - certainly “fundamental” by any reckoning).
(where the purported appointment of an appellate military judge by the Secretary of Defense was wholly without statutory authority because such an appointment was required to be made by the President, with Senate advice and consent, as provided in the Appointments Clause, the appointment was in fundamental constitutional error; as such, neither forfeiture nor the de facto officer doctrine applied).
2013 (September Term)
United States v. Paul, 73 M.J. 274 (while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense).
(in this case, the CCA erred in taking judicial notice of the fact that ecstasy was a Schedule I controlled substance; the CCA cannot take judicial notice of a fact necessary to establish an element of the offense that the government failed to establish at trial).
United States v. Janssen, 73 M.J. 221 (military officers serving as trial and appellate military judges are not appointed in violation of the Appointments Clause because Congress has not, by statute, required a separate judicial appointment for them, and their judicial duties are not so distinct from their duties as military officers as to require separate appointments by the force of the Appointments Clause; their appointments as officers by the President, upon Senate advice and consent, suffice to satisfy the requirements of the clause).
(civilian appellate military judges are “inferior Officers” within the meaning of the Appointments Clause of the Constitution, and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint them; however, Congress may by law vest the appointment of such inferior officers in heads of departments).
(Congress has not “by law” specifically vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause; general, government-wide “housekeeping” statutes did not provide the necessary authority).
(while Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint civilian appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint civilian appellate military judges, it has not done so; as such, the appointment of a civilian appellate military judge was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers; where this was not done, the appointment of a civilian appellate military judge by the Secretary of Defense was invalid and of no effect).
(although the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of his appointment to office is deficient, in this case, where the Secretary of Defense invalidly appointed a civilian appellate military judge to the court of criminal appeals, the de facto officer doctrine was not applied because petitioner challenged the composition of the court while his case was still on direct review; applying the doctrine in such a case would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments).
United States v. Danylo, 73 M.J. 183 (timely management and disposition of cases docketed at the Courts of Criminal Appeals is a responsibility of the Courts of Criminal Appeals).
(Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court).
(Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions).
United States v. Moss, 73 M.J. 64 (the decision whether to take an appeal to an appellate court is personal to an appellant).
United States v. Winckelmann, 73 M.J. 11 (if a CCA can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error).
(in light of the experience, training, and independence of military judges, CCAs act with broad discretion when reassessing sentences; a CCA’s reassessment will only be disturbed in order to prevent obvious miscarriages of justice or abuses of discretion).
(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial).
(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF).
2012 (September Term)
LRM v. Kastenberg, 72 M.J. 364 (the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition).
United States v. Gaskins, 72 M.J. 225 (a court of criminal appeals has discretion to order a sentencing rehearing in a general court-martial that had sentenced appellant to a dishonorable discharge and twelve years of confinement when the record of trial included a verbatim transcript but was incomplete because of the substantial omission of a sentencing exhibit due to the absence; nothing in Articles 18 or 54, UCMJ, and nothing in RCM 1103 compels a limitation on sentence to that which could be approved if there was not a verbatim transcript (i.e., no discharge and no confinement in excess of six months); and the MCM - including Article 54, UCMJ, and RCM 1103 - does not limit a court of criminal appeals’ discretion to remedy an error in compiling a complete record; in contrast, RCM 810(a)(2) specifically authorizes a rehearing on sentence, as does Article 63, UCMJ, and Article 66(d), UCMJ; where a court of criminal appeals exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the court of criminal appeals, as required by Articles 54 and 66, UCMJ).
(in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence).
2011 (September Term)
United States v. Bradley, 71 M.J. 13 (the CCAs are bound by the CAAF’s conclusions of law on remand).
(in this case on remand from the CAAF, the CCA was substantively bound by the CAAF’s holding that appellant’s mistaken view on whether his motion to disqualify trial counsel was waived did not render his unconditional guilty pleas improvident).
United States v. Winckelmann, 70 M.J. 403 (under Article 66(c), UCMJ, the CCA may act only with respect to the findings and sentence as approved by the convening authority; where in this case, the CCA affirmed a forfeiture of pay even though the convening authority did not approve such a forfeiture, the CCA committed error; however, the error was not prejudicial; under Article 58b, UCMJ, appellant had already forfeited any claim to the pay and allowances due to him during his confinement; because the convening authority did not waive the automatic forfeiture under Article 58b, UCMJ, appellant was not entitled to pay and allowances).
2010 (September Term)
United States v. Zarbatany, 70 M.J. 169 (a remand of this case to the CCA for a new Article 66(c), UCMJ, review, is necessary to determine whether the circumstances of appellant’s case warrant additional relief for a violation of Article 13, UCMJ, as a matter of law, or whether such relief would be disproportionate, where (1) the pretrial confinement conditions in this case violated Article 13, UCMJ, and constituted pretrial punishment, (2) after the convening authority’s action, 415 days of excess confinement credit remained, and the only meaningful relief that could be provided to appellant would have to be addressed to his punitive discharge, and (3) it is unclear whether the lower court operated under a correct view of the law in reviewing appellant’s sentence and in exercising its appropriateness power - i.e., it is unknown if the CCA considered such relief unwarranted, unavailable, or available but disproportionate, it is unclear whether the CCA operated on the belief that meaningful relief was required where proportionate under the circumstances, and it appears that the CCA may have subsumed the issue of meaningful relief into a question of credit conversion under RCM 305(k) alone, and then as a question of sentence-appropriateness review under Article 66(c), UCMJ, where it operates at its broadest discretion).
2009 (September Term)
United
States v. Nerad, 69 M.J. 138 (while CCAs have
broad authority under Article
66(c), UCMJ, to disapprove a finding, that authority is not unfettered;
it must
be exercised in the context of legal - not equitable - standards,
subject to
appellate review; relatedly, while Article 66(c), UCMJ, affords a CCA
broad
powers, when faced with a constitutional statute, a CCA cannot, for example, override Congress’s policy
decision, articulated in
a statute, as to what behavior should be prohibited).
(where it is unclear from the
CCA’s opinion
whether it exceeded its authority by disapproving a finding with
reference to
something other than a legal standard, potentially infringing on the
sole
prerogative of the convening authority under Article 60, UCMJ, to
disapprove a
finding based on purely equitable grounds, and where it is also unclear
from
the CCA’s opinion whether the CCA abused its discretion by refusing to
affirm a
finding because it thought it “unreasonable” to criminalize such
conduct “under
the circumstances,” even though the circumstances fell squarely within
the
definition of child pornography crafted by Congress and referenced by
the CCA,
the case must be remanded for further proceedings before the lower
court).
(Article 66(c), UCMJ, states,
that a CCA may
affirm only such findings of guilty, and the sentence or such part or
amount of
the sentence, as it finds correct in law and fact and determines, on
the basis
of the entire record, should be approved; broken into its constituent
parts,
this statutory language provides that a CCA may affirm only such
findings and sentence
that it: (1) finds correct in law; (2) finds correct in fact; and (3)
determines, on the basis of the entire record, should be approved).
(findings and sentence are
grammatically
coupled in Article 66(c), UCMJ, joined equally with the phrase, “and
determines
... should be approved;” the phrase “should be approved” must have
meaning with
respect to findings as well as sentence and modify both; when a
modifier is set
off from a series of antecedents by a comma, the modifier should be
read to
apply to each of those antecedents; therefore, it is impossible - based
on the
statute - to acknowledge a CCA’s power to modify or disapprove a
“correct”
sentence while disagreeing it has any such power with respect to a
“correct”
finding.
(CCAs may not disapprove
findings on equitable
grounds or disregard their statutory duty to determine legal and
factual
sufficiency; a CCA may only set aside a legally and factually
sufficient
finding on the basis of a legal - as opposed to equitable - ground).
(while the CCA clearly has the
authority to
disapprove part or all of the sentence and findings, nothing suggests
that
Congress intended to provide the CCAs with unfettered discretion to do
so for
any reason, for no reason, or on equitable grounds, which is a function
of the
command prerogative of the convening authority).
(the words “should be
approved” in Article
66(c), UCMJ, do have some meaning, and the proposition
that the “should be
approved” clause of Article 66(c), UCMJ, means only that the lower
court can
adjust findings and sentences that are incorrect in law or fact, at
least as
the standards for legal and factual sufficiency are ordinarily
understood, is
rejected; that approach both fails to afford independent meaning to
“should be
approved” and renders it surplusage, as a CCA clearly may not
approve a legally or factually insufficient finding or an illegal
sentence).
(the statutory
phrase “should be approved” in Article 66(c), UCMJ, does not involve a
grant of
unfettered discretion but instead sets forth a legal standard subject
to
appellate review).
(although Article 66(c), UCMJ,
permits a CCA
to examine the record in a particular case and dismiss a finding
because an
accused’s criminality was unreasonably exaggerated by the same acts
beings
charged multiple ways, that Article does not permit a CCA to disapprove
a
legally and factually sufficient finding because it believes that the
conduct -
while falling squarely within the ambit of behavior prohibited by a
constitutional criminal statute - should not be criminalized).
(the CCAs can assess the
record and determine
whether the findings and sentence “should be approved” in the event of
error,
even if the error did not rise to the level of requiring disapproval of
the
finding or sentence as a matter of law - for example, in the context of
trial
and post-trial errors in which doctrines applicable to issues of law ‑
such as
waiver - would preclude CCA action in the absence of the “should be
approved”
language of Article 66(c), UCMJ; a CCA may not, however, disapprove a
finding
based on pure equity).
(when a CCA acts to disapprove
findings that
are correct in law and fact, the CCA’s action is accepted on appellate
review
unless in disapproving the findings, the CCA clearly
acted without
regard to a legal standard or otherwise abused its discretion; a
CCA
abuses its discretion when it disapproves a finding based on purely
equitable
factors or because it simply disagrees that certain conduct - clearly
proscribed by an unambiguous statute - should be criminal).
(even though a CCA is not
required to identify
the basis for its action, failure to do so makes it difficult to
determine
whether a CCA’s exercise of its Article 66(c), UCMJ, power was made
based on a
correct view of the law; the better practice, if a CCA sets aside a
finding
that is correct in law and fact, is for it to explain why the finding
is
unreasonable, based on a legal standard).
(the failure of the CCA to
disclose the legal
basis for its decision to set aside a finding of guilty to a child
pornography
offense required a remand to that court for further review; the CCA
appeared to
believe it had unfettered discretion to disapprove a finding when it
disapproved the finding with the comment that the conduct was not of
the sort
which warranted criminal prosecution, and it identified no error or
other legal
rationale with respect to the charge, the specification, the finding,
the
trial, or the post-trial process that warranted exercise of its unique
power
under Article 66(c), UCMJ).
(decisions not to prosecute or
to grant
requests for clemency are matters of command prerogative, and, as such,
are for
the convening authority, not the CCA).
United
States v. Schweitzer, 68 M.J. 133 (in the absence
of evidence to the
contrary, judges of the courts of criminal appeals are presumed to know
the law
and to follow it).
United
States v. Matthews, 68 M.J. 29 (the portions of
a trial military judge’s
post-trial DuBay factfinding hearing testimony in which he
explained his
deliberative process and reasoning at a court-martial were unreviewable
evidence that could not be considered by a Court of Criminal Appeals).
United
States v. McCracken, 67 M.J. 467 (an appellate
court may not affirm
an included offense on a theory not presented to the trier of fact).
(a court of criminal appeals
may
not affirm an Article 134, UCMJ, offense based solely on the charging
of an
enumerated offense at trial).
United
States v. Miller, 67 M.J. 385 (the courts of
criminal appeals, after finding
the evidence factually insufficient to support a finding of guilty to a
charged
violation of an enumerated article of the UCMJ, may not affirm a
conviction to
a “simple disorder,” under Article 134, UCMJ, as an offense necessarily
included in the enumerated articles; Article 134, UCMJ, is not an
“offense
necessarily included” under Article 79, UCMJ, of the enumerated
articles and
may not be affirmed under Article 59, UCMJ).
United
States v. Thompson, 67 M.J. 106 (after finding
the evidence of kidnapping
factually and legally insufficient because the detention was de
minimis, the
CCA improperly substituted a conviction to reckless endangerment as an
offense
closely related to the offense of kidnapping, where a comparison of the
elements of the two offenses revealed that a conviction for reckless
endangerment required proof of elements that were not included in a
specification for kidnapping, and reckless endangerment was not an
offense
necessarily included in the offense of kidnapping).
United
States v. Mendoza, 67 M.J. 53 (when the action
of a convening authority is
incomplete, ambiguous, or contains clerical error, a court of criminal
appeals
may instruct the convening authority who took the action to withdraw
the
original action and substitute a corrected action).
United
States v. Burch, 67 M.J. 32 (where a clear
and unambiguous action is the
convening authority’s last action delimiting the period of confinement
to be
served, an accused is prejudiced by being confined for a period in
excess of
the authorized sentence; the CCA erred in relying on facts and
circumstances
predating the convening authority’s unambiguous action to find that
appellant
was not prejudiced).
Denedo
v. United States, 66 M.J. 114 (in a BCD
special court-martial, the findings
and sentence approved by the convening authority are subject to direct
review
by the court of criminal appeals of the military department concerned;
in
addition to issues of law, the scope of review at the court of criminal
appeals
extends to factual sufficiency and sentence appropriateness).
(although military appellate
courts are among
those empowered to issue extraordinary writs under the All Writs Act,
the Act confines
a court to issuance of process in aid of its existing statutory
jurisdiction
and does not enlarge that jurisdiction).
(when courts within the
military justice
system lack subject matter jurisdiction over an action, such as an
administrative separation, they cannot invoke the All Writs Act to
enlarge
their jurisdiction to review the administrative action, even if it is
based
upon the results of a court-martial).
(when a petitioner seeks
collateral relief to
modify an action that was taken within the subject matter jurisdiction
of the
military justice system, such as the findings or sentence of a
court-martial, a
writ that is necessary or appropriate may be issued under the All Writs
Act in
aid of the court’s existing jurisdiction).
(on direct appeal in
courts-martial in which
the sentence extends to a punitive discharge, the CCA conducts a de
novo review
of the findings and sentence approved by the convening authority; any
request
for coram nobis relief is limited to the findings and sentence of the
court-martial reviewed by the CCA; where, as in this case, appellant
has raised
a claim of ineffective assistance of counsel that goes directly to the
validity
and integrity of the judgment rendered and affirmed, a petition for
writ of
error coram nobis was in aid of the existing jurisdiction of the CCA).
(in the military justice
system, the trial
court - the court-martial - does not have independent jurisdiction over
a case
after the military judge authenticates the record and the convening
authority
forwards the record after taking action; because the trial court is not
available for collateral review under the UCMJ or the MCM, collateral
review
within the military justice system does not occur at the trial court
level).
(the courts of criminal
appeals, the
first-level standing courts in the military justice system, provide an
appropriate forum for consideration of coram nobis petitions regarding
courts-martial; during the initial consideration of a case, they engage
in de
novo consideration of the record and expressly act on the findings and
sentence; with respect to collateral review of the present case, they
are
well-positioned to determine whether corrective action on the findings
and
sentence is warranted, including ordering any factfinding proceedings
that may
be necessary).
(when court-martial
jurisdiction has been
invoked properly at the time of trial, the jurisdiction of the court of
criminal appeals to review the case does not depend on whether a person
remains
in the armed forces at the time of such review).
(the court of criminal appeals is an
appropriate forum to receive and consider a writ of coram nobis that
involves a
collateral challenge to that court’s approval of the findings and
sentence in a
court-martial, where the court-martial that convicted appellant had
jurisdiction over both the person and the offense and the court of
criminal
appeals had jurisdiction to review and approve the findings and
sentence on
direct review).
(the decision of the court of
criminal appeals
on a writ petition is subject to appellate review).
(appellant’s claim that he
received
ineffective assistance of counsel in a court-martial proceeding when
his
counsel told him that he would not face deportation if he pleaded
guilty at a special
court-martial facially established a sufficient basis for coram nobis
review,
but a ruling on his petition would be premature without a government
response
and consideration by the court of criminal appeals as to whether his
counsel’s
performance was deficient and, if so, whether appellant was prejudiced
thereby).
United
States v. Roach, 66 M.J. 410 (appellate
review in the courts of criminal
appeals embodies the traditional affirmative responsibility of military
reviewing authorities to conduct mandatory, de novo review of
court-martial
proceedings).
(proceedings in the courts of
criminal appeals
differ from civilian appeals in three significant respects; first,
review is
mandatory; the Judge Advocate General must submit each case of the type
at
issue in the present appeal to the court unless the accused
affirmatively
waives the appeal; second, the Judge Advocate General must provide
government-furnished appellate counsel to the accused, regardless of
indigence,
on request of the accused, or when the government is represented on
appeal by
counsel; third, the scope of review by the courts of criminal appeals
differs
in significant respect from direct review in the civilian federal
appellate
courts; in addition to reviewing the case for legal error in a manner
similar
to other appellate courts, Congress has provided the courts of criminal
appeals
with plenary, de novo power of review and the ability to determine, on
the
basis of the entire record which findings and sentence should be
approved; in
that regard, the court conducts a de novo review under Article 66(c) of
the
facts as part of its responsibility to make an affirmative
determination as to
whether the evidence provides proof of appellant’s guilt of each
offense beyond
a reasonable doubt; the court also conducts a de novo review of the
sentence
under Article 66(c) as part of its responsibility to make an
affirmative
determination as to sentence appropriateness).
(the responsibility for
appointing appellate
counsel rests with the Judge Advocate General under Article 70, UCMJ,
but the
authority to control the case rests with the courts of criminal
appeals).
(if an accused becomes
unreasonable in his
demands, he may forfeit his right to any appellate assistance by
counsel).
(a court of criminal appeals
has a number of
options in the event of disagreement between counsel and client,
including: (1) direction for both client
and counsel to separately file their assignments of error; and (2) a
requirement for the Judge Advocate General to appoint substitute
counsel as a
predicate to further appellate proceedings).
(if the accused unreasonably
refuses to
proceed with assigned or substitute counsel, the court of criminal
appeals
should stay the proceedings for a period adequate to allow service upon
the
accused of the order permitting counsel to withdraw, and giving him
sufficient
time to meet the new situation; in the order releasing counsel, there
should be
included a notice that different military counsel will not be made
available to
accused and he must either represent himself or obtain civilian
counsel).
(although courts of criminal
appeals have a
broad mandate to review the record of trial unconstrained by
appellant’s
assignments of error, that broad mandate does not reduce the importance
of
adequate representation; where individual civilian counsel’s failure to
act is
working to the detriment of an appellant, military appellate counsel
may not
stand by idly, because they remain responsible for protecting the
interests of
their client; as officers of the court as well as appellate defense
counsel,
military counsel have an obligation to comply with court orders and
protect the
interests of their client; in that regard, military appellate counsel
can
pursue a number of options to fulfill their obligations to the court
and their
client in the event that civilian counsel does not make a timely
filing; each
of these options would provide the court with a filing on the merits,
including
the appellant’s views, the position of military appellate defense
counsel, and
pertinent explanatory material regarding the posture of the case).
(where a court of criminal
appeals does
nothing to enforce its order that military defense counsel file an
assignment
of merits by a date certain, it errs in deciding the case without
assistance of
counsel and denies appellant the assistance of counsel guaranteed by
Article 70
and the plenary review contemplated by Article 66).
(courts of criminal appeals
have broad powers
to issue orders to counsel to ensure the timely progress of cases
reviewed
under Article 66; such actions must be taken in a manner consistent
with the
requirements of Article 70, UCMJ; when counsel appears to be
unresponsive, the
court has a variety of actions it may take, including:
(1) holding a status conference with the
parties to inquire into the reason for the delay in filing; (2)
ordering
appellate defense counsel to show cause as to why they could not file
their
brief on time; (3) warning counsel that flagrant disregard of the
court’s rules
for timely filing of briefs could result in suspension or disbarment
from practice
before the court; (4) asking the Judge Advocate General to direct the
assignment of additional or substitute counsel; or (5) appointing
another
member of the bar to represent the appellant on a pro bono basis).
(when appellant has requested
representation
on appeal that does not appear to be forthcoming, a court of criminal
appeals
must ensure that military counsel are performing their primary
obligation to
comply with court orders and protect the interests of the client).
(if the court of criminal
appeals determines
that circumstances warrant proceeding without a brief filed by
appointed
military appellate counsel, the court must first provide adequate
notice to
appellant so that appellant can determine whether to request substitute
counsel
under Article 70, obtain civilian counsel at the appellant’s expense,
or waive
the right to counsel and proceed pro se).
(where appellate defense
counsel made multiple
requests for extension of time and those filings raised substantive
issues of
concern, the court of criminal appeals erred in presuming a merits
submission
and in not providing notice to appellant and giving appellant a
reasonable
opportunity to proceed in an alternative fashion with substitute
counsel,
retained counsel, or pro se).
(even when difficulties in the
relationship
between Article 70 counsel and appellant may be attributable to
appellant, appellant
must still be given a reasonable opportunity to proceed in an
alternative
fashion with substitute counsel, retained counsel, or pro se).
(courts of criminal appeals
may set and
enforce deadlines; if a court of criminal appeals encounters multiple
requests
for extension of time by appellate defense counsel, it should determine
the
nature of the problem, ensure that appellant understands the available
options,
and take appropriate action, including requiring that the Judge
Advocate
General appoint additional or substitute counsel if necessary).
United
States v. Ober, 66 M.J. 393 (in this case,
the court of criminal appeals
did not affirm a conviction for transporting child pornography in
interstate
commerce based on a theory of liability not presented to the trier of
fact,
where the theory relied on by the court that transportation occurred
when
appellant downloaded child pornography using the file sharing program,
KaZaA, thereby
causing an upload on the host user’s computer, was one of the
alternative
theories presented by the government at trial, not a different one).
United
States v. Melson, 66 M.J. 346 (after finding
that the accused had raised an
allegation of ineffective assistance of counsel and overcome the
presumption of
competence with an affidavit raising a claim of illegal pretrial
punishment,
the CCA erred in not affording the government an opportunity to submit
a
statement or affidavit from the accused’s
defense counsel to rebut the allegations).
(where the CCA finds that
allegations of
ineffective assistance and the record contain evidence which, if
unrebutted,
would overcome the presumption of competence and there is no affidavit
from
defense counsel in the record addressing those allegations, that court
is
required to obtain a response from trial defense counsel in order to
properly
evaluate the allegations).
United
States v. Rodriguez, 66 M.J. 201 (so long as the
factfinder entered
a general verdict of guilty to a “on divers occasions” specification
without
exception, any one of the individual acts may be affirmed by the CCA as
part of
its Article 66, UCMJ, review).
(the longstanding common law
rule
is that when the factfinder returns a guilty verdict on an indictment
charging
several acts, the verdict stands if the evidence is sufficient with
respect to
any one of the acts charged; the rule is based on the presumption that
the
verdict attaches to each of the several alternative theories charged;
because
the verdict attaches to all theories, the verdict may stand despite
trial
errors if any one of the counts is good and warrants the judgment; the
presumption is similarly applicable where an “on divers occasions”
general
verdict is modified on appeal to a single act).
United
States v. Perez, 66 M.J. 164 (the court of
criminal appeals has an independent
responsibility to affirm only such findings of guilty, and the sentence
or such
part or amount of the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be approved).
(in this case, where the convening authority
modified the findings of guilty to disobeying an order, rape, and
assault
consummated by a battery, by dismissing the charge and specification
for rape,
and approved that portion of the sentence providing for a bad-conduct
discharge, confinement for 206 days, and reduction to the lowest
enlisted grade,
the action taken by the court of criminal appeals on appellate review
in affirming
the findings, as modified by the convening authority, and in approving
that
portion of the sentence that provided for confinement for six months
and
reduction to the lowest enlisted grade was within the power granted to
it by
Article 66(c), UCMJ).
United
States v. Parrish, 65 M.J. 361 (Article 66(c),
UCMJ, does not authorize a court
of criminal appeals to decide disputed questions of material fact
pertaining to
a post-trial claim, solely or in part on the basis of conflicting
affidavits
submitted by the parties; rather, the record of trial must be expanded
through
an evidentiary hearing conducted in accordance with United States
v. DuBay,
17 CMA 147, 37 CMR 411 (1967)).
(in United States v. Ginn,
47 MJ 236, a
number of factors are set forth under which a post-trial evidentiary
hearing is
not required to decide disputed questions of material fact pertaining
to a
post-trial claim resulting from conflicting affidavits submitted by the
parties;
the fourth Ginn factor precludes the need for a DuBay
hearing
when the appellate filings and the record as a whole compellingly
demonstrate
the improbability of appellant’s assertions).
(the court of criminal appeals
erred in
resolving the issue as to whether a material term of the pretrial
agreement
included deferral of the adjudged reduction in grade without a
post-trial
evidentiary hearing; although the appellate filings together with the
record as
a whole compellingly demonstrated the improbability of a sub
rosa agreement to defer reduction in grade, that conclusion did
not address the actual allegation in appellant’s affidavit that he and
his wife
had been misinformed by both defense counsel and trial counsel as to
whether
the pretrial agreement deferred the reduction and the possibility that
appellant
and the government shared a mutual misunderstanding as to the terms of
the
agreement; confusion, inconsistency, and factual gaps pervade the
appellate
filings and raise questions as to their reliability, accuracy, and
completeness;
the record does not support a conclusion that the improbability of
appellant’s
actual assertions was compellingly demonstrated under the fourth Ginn
factor; in addition, the other Ginn factors which would allow
resolution
without a post-trial evidentiary hearing were not applicable here;
under these
circumstances, resolution of the issue required factfinding: to develop the full factual scenario
underlying appellant’s claim that he and his wife were misinformed by
both
defense counsel and trial counsel as to the effect of the written
pretrial
agreement on his pay; to consider, if applicable, whether deferment of
reduction in grade was material to appellant’s decision to enter a
guilty plea;
and to uncover whether prejudicial legal errors occurred; in this
context,
remand to the court of criminal appeals for a DuBay hearing was
necessary).
2007
United States v. Pflueger, 65 M.J. 127 (when a punitive
separation is approved by the convening authority, the case is reviewed
by the appropriate CCA under Article 66).
United States v. Wilson, 65 M.J. 140 (a court of
criminal appeals may act only with respect to the findings and sentence
as approved by the convening authority; because the convening authority
in this case did not approve the dishonorable discharge, it was not
before the lower court on review and that portion of the adjudged
sentence could not be affirmed; for the lower court to do so
constituted error).
United States v. Beatty, 64 M.J. 456 (in enacting the
UCMJ, Congress saw fit to give the courts of criminal appeals very
broad powers with respect to the approved findings and sentences of
courts-martial; in a case referred to it, the court of criminal appeals
may act only with respect to the findings and sentence as approved by
the convening authority; it may affirm only such findings of guilty,
and the sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the entire
record, should be approved; in considering the record, it may weigh the
evidence, judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the trial court saw
and heard the witnesses).
(courts of criminal
appeals
are intermediate appellate judicial tribunals, with an awesome, plenary
de novo power of review that grants unto the court authority to
substitute its judgment for that of the military judge and for that of
the court members; a court of criminal appeals may not affirm the
findings and sentence of a court-martial unless it finds them to be
both factually and legally sufficient).
(the judges of the
courts of
criminal appeals, as senior judge advocates, are presumed to know and
correctly apply the law; the Court of Appeals for the Armed Forces will
impute no intent to engage in fundamental unfairness or rely upon
off-limits tactics to the courts of criminal appeals).
(both legal and factual
sufficiency are matters for courts of criminal appeals to consider de
novo).
United States v. Simon, 64 M.J. 205 (the CCA has two
distinct responsibilities in addressing appellate delay; first, the
court may grant relief for excessive post-trial delay under its broad
authority to determine sentence appropriateness under Article 66(c),
UCMJ; second, as a matter of law, the court reviews claims of untimely
review and appeal under the Due Process Clause of the Constitution).
2006
United
States v. Lane, 64 M.J. 1 (the assignment of a Member of Congress
to be a
judge on the Air Force Court of Criminal Appeals violated the
Incompatibility
Clause of the Constitution; as a result, the panel of the court of
criminal
appeals was not properly constituted; only a properly constituted
appellate
panel can complete the review required by Article 66, UCMJ; therefore,
the
unconstitutional assignment invalidated the lower court’s proceedings
and
decision).
United
States v. Ord, 63 M.J. 279 (when the convening authority does not
act
expressly on the findings, and the SJA’s recommendation omits a finding
of
guilty adjudged by the court-martial, the court of criminal appeals may
not
presume that the convening authority approved the omitted finding; in
such a
case, the court may return the record for a new SJA’s recommendation
and
convening authority’s action).
United
States v. Alexander, 63 M.J. 269 (a court of criminal appeals
exercises
jurisdiction over a broad range of cases under Article 66(b), UCMJ,
including:
(1) every case in which the approved sentence extends to a punitive
separation
or confinement for a year or more unless mandatory review is waived;
(2) every
case involving an approved death sentence; and (3) any other case
submitted to
the court of criminal appeals by the Judge Advocate General under
Article
69(d)).
(under Article 66(c), UCMJ, a
court of
criminal appeals may act only with respect to the findings and sentence
as
approved by the convening authority; the focus on findings approved by
the
convening authority contemplates that the findings must be endorsed or
ratified
by the convening authority).
(the relationship between the
Article
66(c), UCMJ, requirement for approval of the findings and the Article
60(c)(3),
UCMJ, statement that action on the findings is not required reflects
the
competing goals served by the legislation governing the convening
authority’s
role on findings; under the UCMJ as originally enacted in 1950, the
convening
authority served in a judicial role, performing a first-level legal
review of
findings and sentence; as the role of judges at the trial and appellate
levels
increased over time, particularly after enactment of the Military
Justice Act
of 1968, Congress reexamined the requirement for a full legal review of
the
findings and sentence at the convening authority level; in the Military
Justice
Act of 1983, Congress removed the requirement for the convening
authority to
conduct a legal review or otherwise act as an appellate tribunal, while
retaining the convening authority’s power to modify the findings and
sentence
as a matter of command prerogative; as part of the legislation,
Congress
specifically stated in Article 60(c)(3), UCMJ, that the convening
authority was
not required to act on the findings; the approval requirement of
Article 66(c),
UCMJ, has been interpreted in a manner consistent with the
congressional goal
of reducing the post-trial judicial responsibilities of the convening
authority).
(if the convening authority
expressly
acts to approve, disapprove, or modify particular findings of the
court-martial, the result of the convening authority’s action
constitutes the
approved findings reviewed by the court of criminal appeals under
Article
66(c), UCMJ).
(when the convening authority’s action only addresses the sentence, and
does
not mention the findings, the court of criminal appeals may presume
that the
convening authority approved the findings reached by the court-martial
and
reported in the SJA’s post-trial recommendation, absent material
evidence to
the contrary).
(if the list of findings in
the SJA’s
post-trial recommendation omits any reference to a particular finding,
the
court of criminal appeals may not presume that the convening authority
implicitly approved or disapproved the omitted finding; in such a case,
the
court must return the case for a new SJA’s review and convening
authority’s
action unless the court determines that the affected finding should be
disapproved at the appellate level in the interest of efficient
administration
of justice).
United
States v. Moreno, 63 M.J. 129 (the timely management and
disposition of
cases docketed at the courts of criminal appeals is a responsibility of
the
courts of criminal appeals).
United
States v. Politte, 63 M.J. 24 (regarding post-trial matters, Courts
of
Criminal Appeals have jurisdiction to refrain from addressing the
merits of a
case, and instead return an action to the convening authority
if further clarification of the meaning of the action is
necessary).
(because of the importance of
the
convening authority’s action in the court-martial process, appellate
courts
require a clear and unambiguous convening authority’s action; in this
case,
where the convening authority’s action was ambiguous, the lower court
erred by
failing to identify this ambiguity and return the action to the
convening
authority for clarification).
(RCM 1107(g) permits an
authority acting
under Article 64, 66, 67, or 69 to instruct a convening authority to
withdraw
an original action and substitute a corrected action where the original
action
is incomplete, ambiguous, or contains clerical error).
United
States v. Buber, 62 M.J. 476 (a CCA can reassess a sentence to cure
the
effect of prejudicial error where that court can be confident that,
absent any
error, the sentence adjudged would have been of at least a certain
severity;
where the CCA can be so convinced, then that court may reassess and
affirm only
a sentence of that magnitude or less).
(if the CCA can determine to
its
satisfaction that, absent any error, the sentence adjudged would have
been of
at least a certain severity, then a sentence of that severity or less
will be
free of the prejudicial effects of error; and the demands of Article
59(a) will
be met; of course, even within this limit, the CCA will determine that
a
sentence it proposes to affirm will be appropriate, as required by
Article
66(c), UCMJ; in short, a reassessed sentence must be purged of
prejudicial
error and also must be appropriate for the offense involved).
(to validly reassess a
sentence to purge
the effect of error, a CCA must be able to make a number of
determinations; it
must be able to discern the extent of the error’s effect on the
sentence; the
reassessment must be based on a conclusion that the sentence that would
have
been imposed at trial absent the error would have been at least of a
certain
magnitude; this conclusion about the sentence that would have been
imposed must
be made with confidence; no higher sentence than that which would have
been
imposed by the trial forum may be affirmed; and a dramatic change in
the
penalty landscape gravitates away from the ability to reassess).
United
States v. Roderick, 62 M.J. 425 (a court of criminal appeals is
constrained
by the bounds of the record from the court below when reviewing an
appellant’s
guilt or innocence for legal or factual sufficiency; similarly, a court
of
criminal appeals is precluded from considering evidence excluded at
trial in
performing their appellate review function under Article 66(c)).
(where the military judge
admitted
evidence only for a limited purpose with respect to certain
specifications, it
was error for the court of criminal appeals to consider that evidence
with
respect to other specifications).
United
States v. Gaston, 62 M.J. 404 (a court of criminal appeals may act
only
with respect to the findings and sentence as approved by the convening
authority; in this case, the action of the Court of Criminal Appeals in
imposing forfeitures greater than those approved by the convening
authority
improperly increased the accused’s sentence in violation of Article
66(c)).
United
States v. Cendejas,
62 M.J. 334 (in appropriate situations, the government may use the
images of
alleged child pornography themselves to make the showing that they are
of
actual children; an accused is then entitled to confront the
government’s
evidence and present his own evidence that the images are not actual;
in this
case, the military judge’s ruling upholding an unconstitutional
definition of
child pornography from the Child Pornography Prevention Act relieved
the
government of its obligation to prove that the images were of actual
children
beyond a reasonable doubt in an evidentiary proceeding; that ruling, in
turn,
removed any opportunity for the accused to present a defense based on
the
virtual constitutionally-protected nature of the images; in determining
that it
could make its own factual review of the images, the court of criminal
appeals
failed to recognize that since the issue of virtual versus actual was
not
litigated at the trial level, its action resulted in the accused’s
conviction
being upheld on a theory that the accused did not have the opportunity
to
defend against; because this action of the court of criminal appeals
deprived
the accused of the opportunity to confront the government’s evidence on
the
issue of whether the images were of actual or virtual children and to
present
evidence on his behalf that the images were virtual, the accused’s due
process
rights were violated; this error is not harmless beyond a reasonable
doubt
because with the proper opportunity to present evidence in his defense,
the
accused might have raised a question in the military judge’s mind about
the
origin of the images).
United
States v. Ribaudo, 62 M.J. 286 (once a court of criminal appeals
issues its
decision under Article 66(c), UCMJ, an appellant has received his
appeal of
right and is no longer entitled to application of the policy of
abatement ab
initio, even if the period to request reconsideration of that decision
has not
expired; discretionary authority to reconsider a decision does not
alter the
conclusion that an appellant’s appeal of right is complete when the
lower court
issues its decision).
(review by a court of criminal
appeals
pursuant to Article 66, UCMJ, is an appeal of right; the general rule
favors
abatement ab initio pending an appeal of right; it is the longstanding
and
unanimous view of the lower federal courts that the death of an
appellant
during the pendency of his appeal of right from a criminal conviction
abates
the entire course of the proceedings brought against him; it is not
until that
appeal of right is complete that the interests of justice have been
served).
(in the event a court of
criminal appeals
grants reconsideration and withdraws its initial decision or
opinion, an
appellant’s appeal of right cannot be said to be complete until a new
decision
or opinion is issued; similarly, where a court of criminal appeals
decides to
consider a case en banc, Article 66, UCMJ, review cannot be considered
complete
until the decision of the court en banc is issued; however, there is no
basis
in law to alter the policy determination of a court of criminal appeals
that an
appellant who dies after a decision under Article 66(c), UCMJ, has been
issued
is not entitled to abatement of the proceedings against him ab initio;
to the
extent that the CAAF decisions in United States v. Roettger, 17
M.J. 453
(C.M.A. 1984) and United States v. Lange, 18 M.J. 162 (C.M.A.
1984) are
inconsistent with this decision, those cases are overruled).
(should an appellant die prior
to an
opinion on reconsideration or en banc by a court of criminal appeals,
that
appellant would have died prior to completion of his appeal of right
and
therefore be entitled to abatement ab initio; however, should a court
of
criminal appeals deny a motion for reconsideration or a hearing en
banc, the
initial decision or opinion of the court remains valid for purposes of
abatement ab initio).
(in light of the fact that the
Judge
Advocates General have not acted to establish a uniform rule for the
courts of
criminal appeals, and to ensure consistency among the service courts of
criminal appeals, the CAAF extends the following rule to each service
court: where an appellant dies after a court of criminal appeals’
decision affirming the findings and sentence under Article 66(c), UCMJ,
the
appellant is not entitled to abatement ab initio).
United
States v. Forbes, 61 M.J. 354 (in this case, despite its resolution
of the
appeal on an instructional issue, the court of criminal appeals did not
err by
evaluating the legal and factual sufficiency of the evidence of guilt;
while
there may be good reasons in a particular case for an intermediate
appellate
court to focus only on case-dispositive issues, the court is not
precluded from
offering alternative holdings; in the present case, the court of
criminal
appeals might have wanted the CAAF to know that it had performed its
responsibility under Article 66(c) to weigh the legal and factual
sufficiency
of the evidence in the event that the CAAF were to disagree with its
decision
on the instructional issue).
United
States v. Gorence,
61 M.J. 171 (in finding an alternative
foundational
basis for the government’s rebuttal evidence considered by the military
judge
at sentencing on the issue of rehabilitation, the court of criminal
appeals did
not improperly conduct its appellate review by resurrecting excluded
evidence).
United
States v. Augspurger, 61 M.J. 189 (a Court of Criminal Appeals
cannot find
as fact any allegation in a specification for which the factfinder
below has
found the accused not guilty).
United
States v. Leak, 61 M.J. 234 (considering the principles behind the
Double
Jeopardy Clause and precedent, a finding of factual insufficiency by a
court of
criminal appeals is not the legal equivalent of an acquittal by the
trier of
fact at the court-martial level).
(Congress
intended a court of criminal appeals to act as factfinder in an
appellate-review capacity and not in the first instance as a trial
court; a
court of criminal appeals is more akin to a district court entering its
judgment of acquittal pursuant to Fed. R. Crim P. 29 than it is to a
trial
jury; in such a case, under the double jeopardy clause the government
may
appeal the granting of a motion for judgment of acquittal only if there
would
be no necessity for another trial, i.e., only where the jury has
returned a
verdict of guilty; in the military justice system, at the time a court
of
criminal appeals makes a determination of factual insufficiency, a
guilty
finding will necessarily have been returned by a court-martial).
United States v. Dooley, 61 M.J. 258 (the CCA erred in reversing the military judge’s decision to dismiss appellant’s case with prejudice for an RCM 707 speedy trial violation where the military judge did not abuse his discretion; the military judge’s factual findings were not clearly erroneous, and the military judge’s decision in applying the RCM 707 speedy trial factors was not influenced by an incorrect view of the law; the CCA erred by performing a de novo review of the facts and circumstances that led to the dismissal).
United
States v. Bodkins, 60 MJ 322 (where the post-trial
processing
of a case is unreasonable, unexplained, and dilatory, the court of
criminal
appeals erred in asserting that the defense was required to ask for
timely
processing, and that failure to do so waived any right to
relief).
(under
United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), the court of
criminal
appeals has broad discretion to grant or deny relief for unreasonable
or
unexplained post-trial delay, and a finding of specific prejudice is
not
required; the court has discretion to take into account the impact --
or lack
thereof -- of any delay on the accused; in so doing, the court may
consider the
absence of a defense request for action as one factor among other
considerations in assessing the impact of delay in a particular case,
but it
may not elevate that factor into the conclusive basis for denying
relief by
using the mere absence of a request to find waiver).
(the
court of
criminal appeals may rely upon continuing eligibility for limited
military
benefits as a factor in assessing the impact of post-trial delay, but
it must
do so in a manner that focuses on the circumstances of the particular
case; because
post-trial processing entails continuing eligibility for benefits in
all cases,
it is not appropriate to rely on the availability of benefits as a
basis for
denying relief in a particular case without relating it to the
circumstances of
the accused in that case).
Walker
v.
United States, 60 MJ 354 (under typical circumstances,
the
deficiency resulting from lack of a quorum a panel of a CCA can be
readily
rectified by its chief judge; under Article 66(a), UCMJ, the chief
judge can
fill panel vacancies by assigning non-disqualified judges to sit; also,
if the
court as a whole does not have a sufficient number of non-disqualified
judges
to fill the panel, the JAG can appoint additional judges for service on
the
court, and the chief judge then can fill the panel with
non-disqualified judges
under Article 66(a)).
(Article
66(a),
UCMJ, governs the composition of the CCAs and assigns a distinct set of
responsibilities to the JAG and to the chief judge of the CCA; the
Article
requires each JAG to establish a CCA composed of one or more panels,
each of
which shall be composed of not less than three appellate military
judges; it
also requires the JAG to designate as chief judge one of the appellate
military
judges of the CCA; once the court is established and the chief judge is
designated, responsibility for assignment of judges within the court is
vested
by the Article in the chief judge; the chief judge determines on which
panels
of the court the appellate judges assigned to the court will serve and
which
military judge assigned to the court will act as the senior judge on
each
panel; this Article reflects a determination by Congress to create a
degree of
separation between the JAG and internal assignments within the court).
(Article
66(a),
UCMJ, does not provide expressly for a CCA judge to perform the duties
of the
chief judge when the chief judge is absent or recused; the joint rules
for the
CCAs, promulgated under Article 66(f), are likewise silent on this
matter).
(recusal
of a
judge in the event of a conflict of interest is a critical element in
assuring
public confidence in the fairness of the administration of justice;
while
courts typically have either statutory or internal procedures to
designate an
acting chief judge when the chief judge is recused, the absence of such
a
procedure does not preclude an appropriate authority from ensuring the
continuity of a court’s operations in the event of the chief judge’s
recusal).
(when
action by
the chief judge is required in a case or series of cases from which the
chief
judge is recused, the functions of the chief judge must be performed by
another
official because the CCA would otherwise be brought to a halt; Article
66(a),
UCMJ, reflects a congressional preference for a division of
responsibilities
between the JAG and the chief judge of the CCA; this preference is best
furthered by concluding: (1) that the JAG may perform the function
assigned to
that officer under Article 66(a) -- designating an appellate military
judge as
chief judge -- for a particular case or cases to fill the void caused
by the
recusal of the regularly serving chief judge; and (2) that the person
serving
as chief judge for a case or series of cases may perform in those cases
the
function assigned to the chief judge under Article 66(a) -- assigning
judges to
serve on the panel or panels that will hear those cases).
(when
a judge is
recused, that judge should not take action to influence the appointment
of his
or her replacement; a chief judge is not necessarily disabled from
issuing
generally applicable rules that affect a wide range of cases before the
court,
even if the rule happens to apply to a case in which the chief judge is
recused;
if, however, the rule will be applied only in that case or a readily
identifiable set of cases in which the chief judge is recused, the rule
must be
drafted or applied in a manner that preserves the effect of the
recusal;
otherwise, the recusal will not serve the function of Canon 2A of the
ABA’s
Model Code of Judicial Conduct with respect to promoting public
confidence in
the integrity and impartiality of the judiciary).
(in
this case,
reliance on a chief judge’s succession policy to select an acting chief
judge
was impermissible under the circumstances where the chief judge, who
had
recused himself from the case and whose recusal remained in place,
promulgated
that policy in the midst of the litigation from which he was recused,
and the
impact on that litigation was readily identifiable).
(a
court of
criminal appeals may not resurrect excluded evidence during appellate
review
under Article 66(c), UCMJ).
(the
CCA opinion
in appellant’s case is 15 pages in length; it consists of 45
paragraphs, not
including record excerpts; thirty-one of these paragraphs are taken
virtually
or wholly verbatim from 29 of the 33 paragraphs in the Government’s
nineteen-page Answer before the CCA; this is done without attribution;
these
paragraphs include the statement of facts, legal analysis, and
conclusions of law;
after reviewing the CCA’s opinion, we are left in doubt that Appellant
received
the independent Article 66(c) review to which he was entitled).
(in
the Article
66(c) context, replication of a party’s brief by the CCA in its opinion
disguises the nature and substance of the court’s independent factual
and legal
review; as a result, neither we nor the parties can be sure where and
perhaps
whether the Government’s argument ends and the lower court’s
independent
analysis begins; this conclusion is not based on a mathematical
calculation of
replication; nor need we look within the lower court’s deliberations to
make
such a determination; it is based on the manifest demonstration on the
face of
the CCA’s opinion that substantial portions are derived wholly or
virtually
verbatim from a party’s brief; we note that “substantial” conveys both
qualitative and quantitative meaning; thus, an Article 66(c) error
based on the
copying of a party’s brief may be rooted in the replication of certain
important or contested facts, crucial legal analysis, legal
conclusions, or
some combination thereof, as well as the volume of material copied;
such
judgments are case contextual; however, assuredly an original opinion
manifesting independent analysis negates need for review for an Article
66(c)
error based on the copying of a party’s brief).
(the
CCA’s opinion in this case replicates large portions of the statement
of facts,
analysis, and conclusions of law from the Government’s Answer; on such
a record
we cannot disaggregate the Government’s argument from the CCA’s review;
therefore, we cannot determine that appellant received the awesome,
plenary,
and de novo review to which he was entitled by law; in short, the fact
that
appellant received some of what he was entitled to does not mean that
he
received all to which he was entitled; the lower court’s opinion
indicates that
he did not).
United
States v. Toohey, 60 MJ 100 (the Courts of Criminal
Appeals
possess broad powers; they may issue relief upon a finding that lengthy
delay
following a court-martial conviction renders some portion of the
findings or
sentence inappropriate; even if it finds that the delay does not rise
to the
level of a prejudicial error of law, the Court of Criminal Appeals has
the
authority to nevertheless conclude that some form of relief is
appropriate).
United
States v. Gore, 60 MJ 178 (Article 62(b), UCMJ, states
that in
ruling on a government appeal, the court of criminal appeals may act
only with
respect to matters of law, notwithstanding Article 66(c), UCMJ; when a
court is
limited to reviewing matters of law, the question is not whether a
reviewing
court might disagree with the trial court’s findings, but whether those
findings are fairly supported by the record; to give due deference to
the trial
bench, a determination of fact should not be disturbed unless it is
unsupported
by the evidence of record or was clearly erroneous).
United
States v. Gilley, 59 MJ 245, (we hold that Air Force
Court of
Criminal Appeals Rule (AFCCA Rule) 2.2, which requires counsel to
submit briefs
for a remanded case within seven days, which is less than the 60 days
prescribed by Courts of Criminal Appeals Rule of Practice and Procedure
(CCA
Rule) 15, is invalid).
(Article
66(f),
UCMJ, does not permit an individual Court of Criminal Appeals to create
its own
exclusive filing deadline which varies from the general filing deadline
put
forth in the uniform CCA rules).
(we
interpret
Article 66(f), UCMJ, to require identical rules among all Courts of
Criminal
Appeals regarding any course of action an appellant may take in a case
before
such court – which includes filing a brief; Article 66(f) therefore
requires
the Courts of Criminal Appeals to enforce identical deadlines for
filing
briefs; in this vein, CCA Rule 15 provides one deadline for the filing
of any
brief before all Courts of Criminal Appeals; because the seven-day
deadline for
filing briefs in cases on remand under AFCCA Rule 2.2 varies from the
60-day
timeline in the uniform rule, it is invalid).
2003
(the Courts of Criminal Appeals are precluded from considering
evidence
excluded at trial in performing their appellate review function under
Article
66(c)).
(rather than limiting itself to reviewing the propriety of the
military
judge’s trial determinations, the court below changed the evidentiary
nature of
certain prosecution exhibits by holding that the exhibits were
admissible under
specified exceptions to the hearsay rule; the exhibits were elevated to
exhibits admitted for the truth of the matter asserted; the effect of
this
action was to enhance the aggravating nature of this sentencing
evidence and to
modify the qualitative evidentiary content of the record of trial; the
truth of
the matter asserted, which had been excluded at trial, became part of
the
record evidence; this was error; the Court of Criminal Appeals may not
resurrect excluded evidence during appellate review under Article
66(c)).
(in reviewing guilt, evidence excluded in a trial forum cannot be
considered
on appeal to affirm guilt; the same limitation applies to the Court of
Criminal
Appeals when that court acts pursuant to the statutory mandate to
affirm only
the sentence or such part or amount of the sentence, as it finds
correct in law
and fact; the legal review of the sentence is limited to the facts,
testimony,
and evidence presented at trial; the court below erred when it altered
the
evidentiary quality of certain prosecution exhibits, and then proceeded
to
review the appellant’s sentence; where appellant did not receive a
proper legal
review under Article 66(c), UCMJ, the remedy is a remand to the Court
of
Criminal Appeals for a proper review).
United
States v. Rorie, 58 MJ 399 (because an appeal to
the
Courts of Criminal Appeals is an appeal of right, CAAF leaves to those
courts
or the Judge Advocates General to establish the parameters of a policy
of
abatement in the event that an appellant dies pending review at a Court
of
Criminal Appeals).
United
States v. Stoneman, 57 MJ 35 (Congress intended
the Courts
of Criminal Appeals to act as factfinder in an appellate-review
capacity and
not in the first instance as a trial court).
United
States v. Butcher, 56 MJ 87 (on appeal, the issue
of
unreasonable multiplication of charges involves the duty of the Courts
of
Criminal Appeals to "affirm only such findings of guilty, and the
sentence
. . . as it . . . determines, on the basis of the entire record, should
be
approved." Art. 66(c), UCMJ).
(highly discretionary power of the Courts of Criminal Appeals to
deal with
claims of unreasonable multiplication of charges includes the power to
determine that a claim of unreasonable multiplication of charges has
been
waived or forfeited when not raised at trial).
United
States v. Tardif, 57 MJ 219 (a Court of Criminal
Appeals
has authority under Article 66(c), UCMJ, 10 USC § 866(c), to grant
appropriate
relief for unreasonable and unexplained post-trial delays; this
authority under
Article 66(c) is distinct from the court’s authority under Article
59(a), UCMJ,
10 USC § 859(a), to overturn a finding or sentence “on the ground of an
error
of law”; and the court’s authority to grant relief under Article 66(c)
does not
require a predicate holding under Article 59(a) that the error
materially
prejudices the substantial rights of the accused).
(a Court of Criminal Appeals has broad authority under Article 66(c)
to
review and modify sentences).
(the power and duty of a Court of Criminal Appeals to review
sentence
appropriateness under Article 66(c) is separate and distinct from its
power and
duty to review a sentence for legality under Article 59(a); Articles
59(a) and
66(c) “bracket” the authority of a Court of Criminal Appeals:
Article
59(a) constrains the authority to reverse on the ground of an error of
law;
Article 66(c) is a broader, three-pronged constraint on the court’s
authority
to affirm).
(before it may affirm, the Court of Criminal Appeals must be
satisfied that
the findings and sentence are (1) “correct in law,” and (2) “correct in
fact,”
and which it “determines, on the basis of the entire record, should be
approved” - the first prong pertains to errors of law and, as such, it
also
implicates Article 59(a); the second and third prongs do not involve
errors of
law and, thus, do not implicate Article 59(a)).
(Court of Criminal Appeals has authority under Article 66(c) to
grant relief
for excessive post-trial delay without a showing of “actual prejudice”
within
the meaning of Article 59(a), if it deems relief appropriate under the
circumstances).
(in addition to its determination that no legal error occurred
within the
meaning of Article 59(a), the Court of Criminal Appeals is required to
determine what findings and sentence “should be approved,” based on all
the
facts and circumstances reflected in the record, including the
unexplained and
unreasonable post-trial delay).
United
States v. Douglas, 56 MJ 168 (Court of Criminal appeals did
not abuse
its discretion in denying a motion for an extension of time
where: (1)
the motion contained nothing more than a vague allegation that
appellant wished
to raise other issues and that appellant had not been able to discuss
those
issues with appellate counsel; (2) the motion did not identify those
issues
with specificity; and (3) there was no explanation why the issues were
not
raised in appellant’s original pleading).
2001
(Article 66(c) gives the Courts of Criminal Appeals factfinding
power, and
Congress intended to give an accused a de novo proceeding on the merits
and to
empower the Courts of Criminal Appeals to acquit an accused).
(on a remand from the Court of Appeals for the Armed Forces, a Court
of
Criminal Appeals can only take action that conforms to the limitations
and
conditions prescribed by the remand; a mandate to clarify whether the
evidence
was insufficient to support a lesser-included offense cannot reasonably
be
construed to permit reinstatement of the greater offense).
(under Rule 19(a) of the uniform rules of procedure for the Courts of Criminal Appeals, once an appellant files a petition for grant of review with the Court of Appeals for the Armed Forces, the Court of Criminal Appeals no longer has authority to reconsider its findings of fact).
United States v. Hurn, 55 MJ 446 (the Courts of Criminal Appeals have broad factfinding powers, but Congress intended a Court of Criminal Appeals to act as factfinder in an appellate-review capacity only after a trial court made findings based on its consideration of the evidence, and not in the first instance as a trial court).
United
States v. Lee, 54 MJ 285 (Rule 4(a) of the Courts
of
Criminal Appeals Rules of Practice and Procedure, promulgated pursuant
to
Article 66(f), UCMJ, provides that “[w]hen sitting in panel, a majority
of the
judges assigned to that panel constitutes a quorum for the purpose of
hearing
or determining any matter referred to the panel”; this rule allows a
panel of
two out of three assigned judges to operate by quorum.).
2000
United States v. Reed,
54 MJ 37 (while good military character may be sufficient to create a
reasonable doubt, there is nothing which requires a Court of Criminal
Appeals to make a finding that such evidence is not cogent or
irresistible in reviewing a case under Article 66).
(information from the Article 32 investigation, not otherwise admitted into evidence during the trial itself, is matter from outside the record and may not be considered in evaluating guilt under Article 66).
United States v. Armstrong, 54 MJ 51 (although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ).
(when a Court of Criminal Appeals reviews a military judge’s rulings, it has the awesome plenary, de novo power of review to substitute its judgment for that of the military judge).
(where the Court of Criminal Appeals could not determine from the record whether the military judge tested a challenged member for implied bias, the Court of Criminal Appeals was empowered to make its own judgment if it believed that implied bias warranted granting the challenge for cause).
United States v. Scalarone, 54 MJ 114 (Court of Criminal Appeals did not err in following decision of Court of Appeals for the Armed Forces where neither the Supreme Court nor the Court of Appeals for the Armed Forces had overruled the decision, nor had there been any subsequent change in the law affecting that decision).
United States v. Lynn, 54 MJ 202 (Title 29 USC § 455, concerning disqualification of judges, applies to the judges of the Courts of Criminal Appeals; in determining whether a judge of the Court of Criminal Appeals should disqualify himself, the test is whether a reasonable person who knew all the facts might question these appellate military judges’ impartiality).
United States v. Eversole, 53 MJ 132 (a Court of Criminal Appeals has the jurisdiction, authority, and expertise to reassess court-martial sentences, even after dismissing charges).
1999
United
States v. Haagenson, 52 MJ 34 (where a claim that
unlawful
command influence pressured a commander to change his discretionary
referral
decision was supported by affidavit sufficient to raise such issue, and
the
claim was neither inadequate on its face nor conclusively refuted by
the files
and records of the case, the Court of Criminal Appeals was not in a
position to
resolve the controverted issue without a prior evidentiary hearing;
Court of
Criminal Appeals is not authorized to decide disputed questions of fact
pertaining to post-trial claims, solely or in part on the basis of
conflicting
affidavits submitted by the parties).
United
States v. Henderson, 52 MJ 14 (a panel of the Court of
Criminal
Appeals may reconsider and set aside its own decision without the
necessity of
having the initial decision reconsidered by the court sitting as a
whole; this
procedure for reconsideration by a panel of the court is not contrary
to
Article 66(a), UCMJ, is consistent with the uniform rules of procedure
prescribed by the Judge Advocates General, and is recognized by
judicial
decision).
(Court of Criminal Appeals did not erroneously shift the burden by
indicating that the prosecution had no burden to disprove heat of
passion and
adequate provocation; rather, court found, relying on its factfinding
powers,
that the provocation itself was insufficient to undermine finding of
guilty of
unpremeditated murder).
United
States v. Curtis, 52 MJ 166 (the plain language of
Article
66(c), UCMJ, its legislative history, and the precedents of the Supreme
Court
and Court of Appeals for the Armed Forces provide ample authority for
the
Courts of Criminal Appeals to cure an error in the imposition of the
death
sentence by reassessing the sentence to life imprisonment).
(Court of Criminal Appeals did not abuse the discretion conferred
upon that
court by Article 66(c), UCMJ, by setting aside the findings of guilty
based
upon a finding of ineffective assistance of counsel, rather than
affirming lesser-included
offense where: (1) proof of lesser-included offense depended
almost
entirely on victim’s credibility, the very matter about which counsel
was found
to be ineffective; and (2) corroborating scientific evidence was of
marginal
independent value absent the testimony of the victim).
United
States v. Finster, 51 MJ 185 (Court of Criminal
Appeals:
(1) may address prejudicial errors on its own motion and is not limited
to the
matters, if any, discussed in a submission to that court; (2) may
review the
record and reach their own independent conclusion as to whether
findings and
sentence should be affirmed as correct in law and fact; (3) is not
prohibited
by Article 66(c) or Article 59(a) from identifying prejudicial error
without
regard to the nature or quality of the accused’s submission on appeal;
and, (4)
has broad discretion to determine whether an error is harmless, whether
corrective action should be taken by the Court of Criminal Appeals, or
whether
the case should be returned to the convening authority).
(where the SJA recommendation was prepared by an unqualified
enlisted
person, the prejudicial impact of the error was manifest, so the Court
of
Criminal Appeals’ order for a new post-trial action falls well within
that
court’s broad discretion to determine whether an error is harmless,
whether
corrective action should be taken by the Court of Criminal Appeals, or
whether
the case should be returned to the convening authority).
United
States v. Hawes, 51 MJ 258 (Courts of Criminal Appeals
may purge
the prejudicial impact of error by reassessing the sentence if that
court can
confidently discern the extent of the error’s effect on the sentencing
authority’s decision and determine that the accused’s sentence would
have been
at least of a certain magnitude; but, no higher sentence may be
affirmed by the
appellate court than would have been adjudged at trial absent the
error).
United
States v. Gray, 51 MJ 1 (claim that Courts of Military
Review
(now Courts of Criminal Appeals) lack jurisdiction or authority to
review the
constitutionality of the Rules for Courts-Martial and the Uniform Code
of
Military Justice rejected; see United States v. Loving,
41 MJ
213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).
United
States v. Stuart, 50 MJ 72 (Article 66(c), UCMJ, vests
sufficient authority in the Courts of Criminal Appeals to determine
that
remedial action is necessary when, in a case involving confinement for
life,
there is a dispute concerning defense counsel’s failure to contact his
client
before submitting clemency matters).
United
States v. Acevedo, 50 MJ 169 (as a general rule
regarding
appellate practice, an evenly divided vote on a question of law results
in
affirmance of a lower court’s decision; thus, evenly divided vote on
interpretation of pretrial agreement, a matter of law, resulted in
affirmance
of the adjudged and approved sentence by the Court of Criminal
Appeals).
United
States v. Hall, 50 MJ 247 (it is proper for the Courts
of
Criminal Appeals to examine an underlying issue and determine that
charges and
evidence are not tainted).
Steele
v. Van Riper, 50 MJ 89 (issuance of an administrative
discharge
after trial does not negate the power of the Courts of Criminal Appeals
to act
on the findings and sentence).
United
States v. Mitchell, 50 MJ 79 (where the effect of an
action by a
Service Secretary, which may moot an issue, primarily involves service
regulations and practices, it should be addressed first by the service
Court of
Criminal Appeals which can bring special expertise to bear on service
regulatory
matters).
United
States v. Fee, 50 MJ 290 (responsibility for determining
sentence appropriateness is vested by Article 66(c) in the Courts of
Criminal
Appeals).
United
States v. Lacy, 50 MJ 286 (the power to review cases for
sentence appropriateness is vested in the Courts of Criminal Appeals
and their
statutory discretion to determine whether a sentence “should be
approved” under
Article 66(c), UCMJ).
(in exercising discretionary authority to review sentence, Courts of
Criminal Appeals are not required to engage in sentence comparison
except in
those rare instances in which sentence appropriateness can be fairly
determined
only by reference to disparate sentences adjudged in closely related
cases).
United
States v. Noble, 50 MJ 293 (sentence review function of
the
Courts of Criminal Appeals does not require sentence comparison with
other
specific cases except in rare instances in which sentence
appropriateness can
be fairly determined only by reference to disparate sentences adjudged
in
closely related cases).
(an appellant may bring to the attention of the Courts of Criminal
Appeals
other cases with differing dispositions, even though not raising legal
issues,
for such consideration as the judges of the Courts of Criminal Appeals
may deem
appropriate).
(Court of Criminal Appeals did not abuse its discretion by pointing
to
serious charges of which appellant was acquitted in order to describe
the basis
for the command’s decision to dispose of appellant’s case by
court-martial
while permitting administrative discharge in another related case with
less
serious potential charges).
Factual sufficiency:
2022(October Term)
United States v. Thompson, 83 M.J. 1 (review of the factual sufficiency of the evidence is a special power and duty that Article 66(d)(1), UCMJ, confers only on the CCAs).
(the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the CCA are themselves convinced of the accused’s guilt beyond a reasonable doubt).
(the CCAs need not address each issue raised by an appellant and are not required to state their reasoning for their decisions).
(the CCAs are presumed to know the law absent contrary indications).
2018 (October Term)
United States v. English, 79 M.J. 116 (in performing its review under Article 66(c), UCMJ, a court of criminal appeals may narrow the scope of an appellant’s conviction to that conduct it deems legally and factually sufficient).
(a court of criminal appeals cannot find the specific unlawful force as alleged in a rape specification factually insufficient, change the scope of the offense from the specific force alleged and litigated at the court-martial to a generic and thus broader charge that was not presented at trial, and still affirm the finding based on a theory of criminality not presented at trial; such action both exceeds the court’s appellate authority and violates appellant’s constitutional due process rights).
(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).
(although a CCA has broad discretion when it reviews the record of trial under Article 66, UCMJ, that discretion is not unlimited; Article 66(c), UCMJ, requires a service court to conduct a plenary review of the record and affirm so much of the findings and sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; relatedly, Article 59(b), UCMJ, grants a reviewing court the discretion to affirm, instead, so much of the finding as includes a lesser included offense; but there is no authority, statutory or otherwise, that permits a CCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial).
(when conducting a review for factual sufficiency, a CCA considers whether, after weighing the evidence in the record of trial, it is convinced of the accused’s guilt beyond a reasonable doubt).
(in this case, the CCA found that the rape victim’s version of the events credible but determined that her testimony did not support a conviction for a sexual act committed by the unlawful force of appellant grabbing the victim’s head with his hands but rather by a broader, generic unlawful force; by finding the evidence did not support the facts as charged, the CCA effectively concluded that appellant was not guilty of the specification; the CCA had two options: (1) set aside the findings as to rape specification because the finding was not correct in fact; or (2) affirm a lesser included offense, Article 59(b), UCMJ; what the CCA could not do was strike the charged language regarding the specific unlawful force and affirm the rape specification simply because there was sufficient evidence to prove appellant committed the sexual act by unlawful force; to permit the CCA’s revision of the charge sheet in this case would convict appellant, on appeal, of an offense met by a more expansive (and undefined) set of facts than those charged and litigated at trial; while Article 66, UCMJ, provides extensive powers of appellate review to service courts of criminal appeal, it does not permit after-the-fact revisions to the charge sheet that sweep more broadly than what was alleged, and what an appellant was convicted of, at trial).
(when a CCA narrows the scope of language in a specification to affirm only so much as is correct in law and fact rather than broadening the scope of the language, such a change does not run afoul of due process concerns).
(expanding the scope of a specification on appeal beyond that which was presented to the trier of fact is akin to the violation of due process that occurs when an appellate court affirms a conviction based on a different legal theory than was presented at trial).
(in this case, given the government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact).
(in this case, the CCA, through exception to the specification on appeal, affirmed a charge with a broader factual basis than the theory the government originally charged and proceeded on at trial; such post hoc modification is an error of constitutional magnitude that offends the most basic notions of due process).
2016 (October Term)
United States v. Swift, 76 M.J. 210 (while a CCA has broad discretion in conducting its Article 66(c) review, a CCA’s factual sufficiency review is confined to findings of guilty approved by the convening authority; an even more fundamental concept, of course, is that an accused may only be found guilty of an offense with which he was charged, as well as any lesser-included offenses thereunder, and it is only those offenses that may be affirmed by a reviewing court; moreover, even where the evidence itself might fit within the technical contours of a specification or indictment, an appellate court may not affirm a conviction based on a theory not presented to the trier of fact).
(where a CCA’s Article 66(c), UCMJ, factual and legal sufficiency review affirms the findings of guilty based solely upon uncharged misconduct, it is legally deficient, and a proper Article 66(c), UCMJ, review must be conducted upon remand; the CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Article 66(c)).
United States v. Rosario, 76 M.J. 114 (in contrast to most civilian appellate courts, courts of criminal appeals have a statutory mandate to conduct a de novo review of both the legal and factual sufficiency of a conviction).
(the test for a factual sufficiency review by the lower courts is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant’s guilt beyond a reasonable doubt).
(a court of criminal appeals cannot find as fact any allegations of which the accused was found not guilty at trial).
(a reviewing court may consider facts underlying an acquitted charge in considering whether the facts support a separate charge).
(when the same evidence is offered at trial to support two different offenses, a court of criminal appeals is not necessarily precluded from considering the evidence that was introduced in support of the charge for which the appellant was acquitted when conducting its Article 66(c), UCMJ, legal and factual sufficiency review of the charge for which the appellant was convicted; appellants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate review).
(double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty; however, in the instant case, the consideration by the court of criminal appeals of facts underlying the assault and abusive sexual contact offenses of which appellant was acquitted in evaluating the sexual harassment offense of which he was convicted did not violate double jeopardy principles because the offenses and elements were, quite simply, not the same).(in this case, the court of criminal appeals properly considered facts relevant to the abusive sexual contact and assault consummated by battery specifications of which appellant was acquitted because those facts were also relevant to the sexual harassment specification of which he was convicted).
United States v. Clark, 75 M.J. 298 (in this case, where the CCA set aside the findings and sentence on factual sufficiency grounds and dismissed the charges and specifications with prejudice, it did not fail to conduct a complete review under Article 66(c), UCMJ, even though it failed specifically to acknowledge the military judge’s special findings; the special findings of the military judge went virtually entirely to the credibility of witnesses and the weight of the evidence – issues that lie at the core of the function of the trier of fact and the Article 66 factual sufficiency powers of the CCA; in its decision, the CCA noted that the government’s case rested nearly exclusively on the alleged victim’s delayed and partial memories; exercising its prerogative to weigh the evidence and judge the credibility of witnesses, the CCA relied on the lack of physical evidence and the testimony of the defense expert more than that of the government’s expert in describing the circumstances and validity of the alleged victim’s delayed recollection of the events; the CCA explained that, before reaching its judgment, it had reviewed the record of trial and evaluated the arguments by the appellant and the government and made allowances for not having heard or observed the witnesses; the special findings were part of the record of trial; given the nature of the military judge’s special findings, the presumption of regularity that applies to the acts of the appellate military judges, and the CCA’s statement that it applied the statutory prerogatives, the CCA acted within its statutory prerogatives under Article 66(c)).
United States v. Pease, 75 M.J. 180 (Article 66(c), UCMJ, requires CCAs to conduct a factual sufficiency review by determining whether the evidence at trial proves an appellant’s guilt beyond a reasonable doubt; when conducting this review, CCAs are limited to the evidence presented at trial, but their application of the law to the facts must be based on a correct view of the law).
(in light of its Article 66(c), UCMJ, factual sufficiency responsibility, the CCA needs to determine the correct, applicable law in order to properly conduct its factual sufficiency analysis; in this case, the fact that the CCA found it necessary to consider legal definitions not expounded upon at trial did not constitute consideration of matters outside the record or consideration of a new legal theory, but instead represented a permissible act within the CCA’s Article 66(c), UCMJ, authority; simply put, the CCA is not bound by the military judge’s trial instructions in conducting its Article 66(c), UCMJ, factual sufficiency review).
United States v. Bennitt, 74 M.J. 125 (though it has significant factfinding powers under Article 66, UCMJ, a CCA is not free to revise the basis on which an accused is convicted simply because the same result would likely obtain on retrial).
(the CCA can affirm only such findings of guilty as it finds correct in law and fact, and cannot find as fact any allegation in a specification for which the factfinder below has found the accused not guilty).
United States v. Stewart, 71 M.J. 38 (among other protections, the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; this principle prohibits a reviewing court from rehearing any incidents for which the accused was found not guilty; consistent with this double jeopardy principle, the CCA may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial).
(in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence, the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error).
United
States v. Ross, 68 M.J. 415 (if the record
does not indicate which of the
alleged incidents forms the basis of the conviction, the resulting
ambiguous
findings, along with double-jeopardy principles, bar the CCA from
performing
its usual factual-sufficiency review).
(where appellant was charged
with possession
of child pornography on divers occasions during a particular time
period and
the military judge excepted from the specification the words “on divers
occasions” without further explanation, the findings were ambiguous;
although
excepting those words without explanation created ambiguous findings,
the
government could nevertheless prevail if the evidence was legally
insufficient
to show that appellant was guilty of possession with respect to two of
the
three seized electronic storage media; under those circumstances, as a
matter
of law, the military judge could have found appellant guilty of
possession with
respect to only one of the media - in other words, the verdict would be
unambiguous; but here, where the evidence was legally sufficient with
respect
to the presence of child pornography on two of the storage media, the
fact
remains that an appellate court could not know what the military judge
found
appellant guilty and not guilty of, or indeed whether he found
appellant not
guilty of anything at all; under these circumstances, a proceeding in
revision
is not permitted, and dismissal of the charge and its specification
with
prejudice is required).
United
States v. Trew, 68 M.J. 364 (when the phrase
“on divers occasions” is
removed from a specification, the effect is that the accused has been
found
guilty of misconduct on a single occasion and not guilty of the
remaining
occasions; if there is no indication on the record which of the alleged
incidents forms the basis of the conviction, then the findings of guilt
are
ambiguous and the court of criminal appeals cannot perform a factual
sufficiency review).
(where the findings remove the
“on divers
occasions” language from a specification but do not disclose the single
occasion on which a conviction is based, the court of criminal appeals
cannot
conduct a factual sufficiency review or affirm the findings because it
cannot
determine which occasion the servicemember was acquitted of; double
jeopardy
principles prohibit a reviewing court from rehearing any incidents for
which
the accused was found not guilty; courts of criminal appeals may not
perform an
independent review of the record to determine which of the possible
incidents
most likely formed the basis for the conviction; however, a court of
criminal
appeals may review the record to determine if there was only a single
possible
incident that met all the details of the specification for which an
appellant
was convicted).
United
States v. McCracken, 67 M.J. 467 (an appellate
court may not affirm
an included offense on a theory not presented to the trier of fact).
(a court of criminal appeals
may
not affirm an Article 134, UCMJ, offense based solely on the charging
of an
enumerated offense at trial).
United
States v. Wilson, 67 M.J. 423 (when the phrase
“on divers occasions” is
removed from a specification, the effect is that the accused has been
found
guilty of misconduct on a single occasion and not guilty of the
remaining
occasions; if there is no indication on the record which of the alleged
incidents forms the basis of the conviction, then the findings of guilt
are
ambiguous and the court of criminal appeals cannot perform a factual
sufficiency review).
(an ambiguous determination of
guilt precludes
a court of criminal appeals from performing a factual sufficiency
analysis; the
court may not conduct a factual sufficiency review when the findings
are
ambiguous because such action creates the possibility that the court
would
affirm a finding of guilt based on an incident of which the appellant
had been
acquitted by the factfinder at trial).
(when the phrase “on divers
occasions” is removed
from a specification, and there is no indication on the record which of
the
alleged incidents forms the basis of the conviction, the courts of
criminal
appeals may not perform an independent review of the record to
determine which
of the possible incidents most likely formed the basis of the
conviction;
ambiguous findings preclude any attempt by the lower courts to
distinguish
incidents that resulted in acquittal from the single incident that
resulted in
a conviction).
(when the phrase “on divers
occasions” is
removed from a specification, a court of criminal appeals may review
the record
to determine if there is only a single possible incident that meets all
the
details of the specification for which the appellant was convicted).
(where the government
presented evidence of
multiple incidents of rape that occurred during a lengthy time frame
and in the
general location stated in a rape specification, where the military
judge found
appellant guilty of the rape specification, excepting the words “on
divers
occasion,” where two alleged rape incidents occurred within the
remaining
language of the specification after the removal of the divers occasion
language, where the military judge did not indicate on the record or
through
substitutions to the specification which alleged rape incident she was
convicting appellant of, and where neither party asked for
clarification as to
which allege rape incident formed the basis of the conviction, the
court of
criminal appeals was not in a position as a matter of law to determine
which of
the two alleged incidents served as the grounds for appellant’s
conviction
without explicit guidance on the record from the military judge, and
thus, it
was precluded from performing a factual sufficiency review).
Denedo
v. United States, 66 M.J. 114 (in addition to
issues of law, the scope of
review at the court of criminal appeals extends to factual sufficiency
and
sentence appropriateness).
United
States v. Rodriguez, 66 M.J. 201 (the CCA cannot
review a
conviction for factual sufficiency under Article 66, UCMJ, when
appellant was
charged with committing an illegal act “on divers occasions,” but was
found
guilty at trial by exceptions and substitutions to a single unspecified
act;
this rule applies only in those narrow circumstances involving the
conversion
of a “divers occasions” specification to a “one occasion” specification
through
exceptions and substitutions by the members).
(so long as the factfinder
entered
a general verdict of guilty to a “on divers occasions” specification
without
exception, any one of the individual acts may be affirmed by the CCA as
part of
its Article 66, UCMJ, review).
(the longstanding common law
rule
is that when the factfinder returns a guilty verdict on an indictment
charging
several acts, the verdict stands if the evidence is sufficient with
respect to
any one of the acts charged; the rule is based on the presumption that
the
verdict attaches to each of the several alternative theories charged;
because
the verdict attaches to all theories, the verdict may stand despite
trial
errors if any one of the counts is good and warrants the judgment; the
presumption
is similarly applicable where an “on divers occasions” general verdict
is
modified on appeal to a single act).
(where the accused was found
guilty of using marijuana on divers occasions by members, without
exception,
the CCA, in the course of conducting its legal and factual sufficiency
review,
could affirm the conviction with respect to a single act, after finding
the
evidence for the other acts was factually insufficient).
(where the evidence was
factually
insufficient as to two of the three acts of marijuana use, the charge
could
nevertheless be sustained on appeal as to the third marijuana use;
because that
single use affirmed by the CCA no longer constituted an “on divers
occasions”
offense, the lower court necessarily reconstituted appellant’s charge
as a
single use and reassessed his sentence; the action by the CCA in this
case is
no different than if appellant had been charged with the three acts in
question
in the conjunctive, a general verdict had been returned, and the CCA
found two
of the acts to be unsupported by the facts adduced at trial; when a
jury
returns a guilty verdict on an indictment charging several acts in the
conjunctive, the verdict stands if the evidence is sufficient with
respect to
any one of the acts charged; where factually insufficient alternatives
were
removed on appeal, the conviction may nonetheless be sustained; an
unadulterated, unobjected-to, general verdict implicitly contains a
verdict of
guilt as to each underlying act, and the CCA did not err in exercising
its
factual and legal review pursuant to Article 66, UCMJ).
(a general verdict on an “on
divers occasions” charge can be changed into a single act on appeal
when the
general verdict was reached without exception by the factfinder; it
makes no
difference how many members chose one act or the other, one theory of
liability
or the other; the only condition is that there be evidence sufficient
to
justify a finding of guilty on any theory of liability submitted to the
members).
2007
United States v. Beatty, 64 M.J. 456 (in their review
of court-martial findings, that is, of guilt and innocence, courts of
criminal appeals are limited to the evidence presented at trial).
2005
United
States v. Augspurger, 61 M.J. 189 (when a servicemember is charged
with
illegal conduct “on divers occasions” and the members find the accused
guilty
of charged conduct but strike out the “on divers occasions” language,
the
effect of the findings is that the accused has been found guilty of
misconduct
on a single occasion and not guilty of the remaining occasions; where
the
findings do not disclose the single occasion on which the conviction is
based,
the Court of Criminal Appeals cannot conduct a factual sufficiency
review or
affirm the findings because it cannot determine which occasion the
servicemember was convicted of and which occasion the servicemember was
acquitted of).
(a
Court of
Criminal Appeals cannot find as fact any allegation in a specification
for
which the factfinder below has found the accused not guilty).
(where
the
accused was charged with wrongfully using marijuana “on divers
occasions,” and
the members found him guilty of only a single use, and not guilty of
use “on
divers occasions,” without indicating which of three alleged uses
formed the
basis of its finding, the Court of Criminal Appeals did not have the
authority
to review and affirm the accused’s conviction for drug use by selecting
the
occasion that formed the basis for the conviction and then reviewing
that
conclusion for factual sufficiency; that court could not conduct a
factual
sufficiency review of appellant’s conviction because the military judge
failed
to clarify the factual basis upon which the members’ findings of guilty
and not
guilty were based; there was simply no indication by the members as to
the
factual basis for their findings and, in fact, the inability to
determine the
basis for the findings was reflected in the record; after the findings
were
announced, each party held a different view of the basis for the
findings; even
the military judge was uncertain).
United
States v. Scheurer, 62 M.J. 100 (when an accused is charged with
committing
illegal conduct on divers occasions and the court-martial finds the
accused
guilty of charged conduct but strikes out the on divers occasions
language, the
effect of the findings is that the accused has been found guilty of
misconduct
on a single occasion and not guilty of the remaining occasions; when
this
occurs, if the findings do not disclose the single occasion on which
the
conviction is based, a court of criminal appeals cannot conduct a
factual
sufficiency review or affirm the findings because it cannot determine
which
occasion the servicemember was convicted of and which occasion the
servicemember was acquitted of).
2004
United
States v. Seider, 60 MJ 36 (the issue in this case
focuses
upon the uncertainty in this particular verdict – a circumstance
involving the
conversion of a “divers occasion” specification to a “one occasion”
specification through exceptions; because the findings of guilty and
not guilty
do not disclose the conduct upon which each of them was based, the
Court of
Criminal Appeals cannot conduct a factual sufficiency review of
Appellant’s
conviction; as we noted in Walters, the Court of Criminal
Appeals is
prevented from even conducting its factual sufficiency review by the
fundamental rule that the Court of Criminal Appeals cannot find as fact
any
allegation in a specification for which the factfinder below has found
the
accused not guilty; the defect is neither a question of the legal or
factual
sufficiency of the evidence, nor is it a question to be resolved by
weighing
evidence and concluding that evidence is quantitatively or
qualitatively
inferior).
2003
United
States v. Walters, 58 MJ 391 (in terms of factual
sufficiency, the test is whether, after weighing the evidence in the
record of
trial and making allowances for not having personally observed the
witnesses,
the members of the service court are themselves convinced of
appellant's guilt
beyond a reasonable doubt).
(the unique power of review for factual sufficiency is subject to a
critical
limitation; a Court of Criminal Appeals cannot find as fact any
allegation in a
specification for which the fact-finder below has found the accused not
guilty).
(appellant was found guilty of using ecstasy on one occasion during
the time
period referenced in the specification; the Government attempted to
prove
allegations of wrongful use on numerous occasions and the verdict
reflected
that the members found appellant not guilty of all of those allegations
save
one; in conducting its factual sufficiency review, the Court of
Criminal
Appeals cannot find the appellant guilty of any of the allegations of
use of
which the members found him not guilty; the Court of Criminal Appeals
is
required to weigh the evidence and be themselves convinced beyond a
reasonable
doubt of appellant's guilt of engaging in wrongful use on the same "one
occasion" that served as the basis for the members' guilty finding;
without knowing which incident that appellant had been found guilty of
and
which incidents he was found not guilty of, that task is impossible;
appellant
has a substantial right to a full and fair review of his conviction by
the
Court of Criminal Appeals under Article 66(c), and the ambiguity in the
court-martial's findings results in material prejudice to that right).
2002
United
States v. Sills, 56 MJ 239 (“beyond a reasonable
doubt” is
the correct standard to fulfill congressional intent that the
intermediate
appellate courts conduct de novo review of factual sufficiency
under
Article 66(c), UCMJ. United States v. Turner, 25 MJ 324
(CMA
1987)).
United
States v. Washington, 57 MJ 394 (Article 66(c)
requires
the Courts of Criminal Appeals to conduct a de novo review of
legal and
factual sufficiency of the case; the court may affirm a conviction only
if it
concludes, as a matter of factual sufficiency, that the evidence proves
appellant’s guilt beyond a reasonable doubt).
(the Court of Criminal Appeals is required to conduct a de novo
review of the entire record of a trial, which includes the evidence
presented
by the parties and the findings of guilt; such a review gives no
deference to
the decision of the trial court on factual sufficiency beyond the
admonition in
Article 66(c), UCMJ, to take into account the fact that the trial court
saw and
heard the witnesses).
(in the performance of its Article 66(c), UCMJ, functions, the Court
of
Criminal Appeals applies neither a presumption of innocence nor a
presumption
of guilt).
(during review under Article 66(c), UCMJ, an appellant does not bear
the
burden of raising doubts about the trial-level finding of guilty).
2001
United
States v. McAllister, 55 MJ 270 (Courts of
Criminal
Appeals are charged with the duty of determining not only the legal
sufficiency
of the evidence but also its factual sufficiency; they must be
convinced of an
appellant's guilt beyond a reasonable doubt).
(if Court of Appeals for the Armed Forces is in doubt whether the
Court of
Criminal Appeals properly determined the factual sufficiency of the
evidence,
the remedy is to remand the case for a proper factual review of the
findings of
guilty; Court of Appeals for the Armed Forces will not overturn
findings of
fact by a Court of Criminal Appeals unless they are clearly erroneous
or
unsupported by the record).
2000
United
States v. Reed, 54 MJ 37 (the test for factual
sufficiency
is whether, after weighing the evidence in the record of trial and
making
allowances for not having personally observed the witnesses, the court
is
convinced of the accused’s guilt beyond a reasonable doubt).
Sentence
appropriateness:
2023 (October Term)
United States v. Swisher, 85 M.J. 1 (CCAs are empowered to review cases for sentence appropriateness, and a CCA's power to review a case for sentence appropriateness includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions).
(the CCAs typically have discretion to consider and compare other sentences when they are reviewing a case for sentence appropriateness and relative uniformity).
(generally speaking, neither Article 66[(d)(1), UCMJ, nor CAAF precedents requires the CCAs to engage in sentence comparison with specific cases; importantly, however, this general rule is subject to one exception; that is, the CCAs are required to engage in sentence comparison in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).
(with regard to sentence appropriateness at a CCA, an appellant bears the burden of demonstrating that any cited cases are closely related to his or her case and that the sentences are highly disparate; if the appellant meets that burden, or if the court raises the issue on its own motion, then the government must show that there is a rational basis for the disparity).
(in this case, where appellant contended at the CCA that his sentence was highly disparate when compared to the sentence awarded to his civilian co-actor, the CCA was required to decide at the outset of its analysis whether appellant had borne the burden of showing that his case and that of his co-actor were closely related; if the cases were closely related, the CCA then had to proceed to determine whether appellant had shown that the sentences imposed in each case were highly disparate, and if so, whether there was a rational basis for this disparity).
(when a CCA confronts the issue of whether the sentence in a court-martial case is inappropriate in the light of a sentence imposed in a civilian case, that court must conduct an initial assessment of whether the cases are closely related).
(in this case, the CCA abused its discretion in denying appellant's complaint of sentence disparity by declining to compare his sentence with that of a civilian co-actor because his co-actor's sentence was awarded by a civilian jurisdiction and in failing to determine at the outset whether appellant met his burden of showing that his case and the case of his civilian co-actor were closely related; the mere fact that the co-actor's case was the product of a civilian criminal proceeding was not necessarily dispositive of the issue of whether the cases were closely related; a civilian sentences may serve as a basis for sentence comparison; here, because the CCA did not decide whether appellant's case and his co-actor's case were closely related, the CCA abused its discretion because its decision was influenced by an erroneous view of the law).
(the fact that a closely related case involved a civilian conviction and sentence rather than a military conviction and sentence may be weighed when determining whether the sentences were truly disparate and/or whether there was a rational basis for the disparity).
(cases are closely related for sentence appropriateness review if they fit within at least one of three categories and one of those categories is when the individuals were co-actors involved in a common crime).
(CCAs have broad discretion to decide whether individuals are co-actors, and they are not compelled to accede to the concessions of a party on this issue; such a determination is necessarily fact driven).
United States v. Williams, 84 M.J. 362 (when conducting a sentence reassessment analysis under US v. Winckelmann, 73 MJ 11 (CAAF 2913), a CCA should look to the proceeding that resulted in a sentencing error -- usually the most recent proceeding; because reassessment is conducted in response to a sentencing error, the analysis must examine the proceeding that caused the error, and nothing that happened prior to the rehearing, aside from the sentencing cap, is relevant to the CCA's sentence reassessment).
(in this case, the CCA abused its discretion in reassessing appellant's sentence by using in its analysis the first court-martial's rape offense that had been set aside and dismissed prior to the second court-martial; however, there was no prejudice where (1) the offenses appellant was convicted of had a maximum confinement sentence of life without eligibility for parole, (2) his sentence was capped at 20 years by his first court-martial, and (3) appellant's sentence to 19 years of confinement was not an obvious miscarriage of justice).
United States v. Flores, 84 M.J. 277 (when a CCA conducts a sentence appropriateness review under Article 66(d), UCMJ, the CCA must consider the appropriateness of each segment of a segmented sentence and the appropriateness of the sentence as a whole).
(because Article 66(d), UCMJ, requires a CCA to review the appropriateness not only of the sentence but also of each part or amount of the sentence, a CCA must review the appropriateness of each segmented period of confinement and each segmented amount of any fine; in addition to reviewing the appropriateness of each segment, a CCA must also continue to review the appropriateness of the entire sentence).
(the CAAF's precedents do not require a CCA to explain its reasoning when assessing the reasonableness of a sentence; however, if a CCA's opinion reveals a misunderstanding of the applicable law, the CAAF may require a new sentence appropriateness review).
(in this case, although the CCA did not specifically state that it reviewed the appropriateness of each segment of the segmented sentences, it did not abuse its discretion in conducting its sentence appropriateness review, where (1) the CCA did not express any incorrect statement of law as to sentence appropriateness review, (2) the CCA considered the appropriateness of each segment of confinement because it looked carefully and fully at the aggravating evidence pertaining to each of the offenses of which appellant was found guilty, (3) the CCA explained that the pretrial agreement required any sentences of confinement to run concurrently, and a requirement that sentences run concurrently can only exist when there are segmented sentences; and (4) the CCA recognized that it had to consider the maximum period of confinement for each offense).
United States v. Hasan, 84 M.J. 181 (CCAs are empowered to review prison condition claims if the record contains information about those conditions).
(appellant's argument that his case should be remanded to the CCA because it erred by not considering his alleged forcible shavings in post-trial confinement in conducting its sentence appropriateness review is unavailing where he did not present to the convening authority any claim regarding confinement facility grooming policies, despite submitting a 450-page hand-written clemency submission; within the parameters of U.S . v. Jessie, 79 MJ 437 (CAAF 2020), nothing in the record before the CCA raised an issue regarding the purported shavings).
2022 (October Term)
United States v. McAlhaney, 83 M.J. 164 (an appellant’s failure to object to the factual language in the reprimand in a post-trial motion does not forfeit this issue; issuing a reprimand through the convening authority’s action memorandum does not make the reprimand an error in the convening authority’s action, which first must be addressed via a post-trial motion to preserve an appellate challenge pursuant to RCM 1104(b)(1)(F); while it is true that a convening authority typically issues a reprimand via the same instrument as the action, nonetheless, there is no rule requiring these two acts to be effectuated via the same instrument or even at the same time; accordingly, RCM 1104(b)(1)(F) is not meant to address inappropriately severe reprimand challenges under Article 66(d), UCMJ).
(in this case, the CCA erred in conducting a two-pronged analysis of the reprimand by first reviewing de novo whether sentencing appellant to a reprimand was overly severe and then reviewing for plain error whether the language used in the reprimand was factually accurate; because a reprimand is a component of an adjudged sentence, appellant’s challenge to the reprimand, both generally and as written, implicated sentence appropriateness which is reviewed de novo)
United States v. Behunin, 83 M.J. 158 (Article 66(d)(1), UCMJ, provides the CCAs broad discretion to determine whether a sentence should be approved, a power that has no direct parallel in the federal civilian sector; the CCAs’ power to review a case for sentence appropriateness includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions).
(the CCAs typically have discretion to consider and compare other specific courts-martial sentences when they are reviewing a case for sentence appropriateness and relative uniformity; thus, generally speaking neither Article 66(d)(1) nor CAAF’s precedents requires the CCAs to engage in sentence comparison with specific cases; however, this general rule is subject to one exception; the CCAs are required to engage in sentence comparison in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).
(in this case, the CCA did not abuse its discretion when it determined that appellant’s case was not closely related to another accused’s case where the two were not coactors involved in a common crime because they were coactors merely ina subset of the overall convicted offenses).
(the mere fact that two servicemembers were charged under the same UCMJ articles does not mean that they were coactors involved in a common crime where the offenses were committed as independent actors rather than as coactors).
(an appellant and the putative coactor need not be convicted of identical offenses in order for them to have closely related cases; it is the nexus between the convicted offenses that serves as the key determinant).
(in this case, the CCA did not abuse its discretion when it reached its legal conclusion that appellant’s case and another accused’s case were not part of a common or parallel scheme; despite the fact that both appellant and the other accused were charged with identical UCMJ offenses, there was no direct nexus between the actual conduct of appellant and the other accused; simply stated, appellant and the other accused were independent actors in regard to those crimes).
(the mere similarity of offenses is not sufficient for sentence disparity purposes).
(in this case, where appellant and another accused were independent actors with respect to two separate offenses, it was not an abuse of discretion for the CCA to conclude that there was no “other direct nexus” between these cases).
(in this case, it was within the range of choices reasonably arising from the applicable facts and the law for the CCA to conclude that appellant’s case and that of another accused were not closely related where they did not fit within at least one of the following three categories: (1) the servicemembers were coactors involved in a common crime; (2) the servicemembers were involved in a common or parallel scheme; or (3) there was some other direct nexus between the servicemembers whose sentences are sought to be compared; accordingly, the CCA did not abuse its discretion when it held that the cases were not closely related cases whose sentences required comparison).
2020 (October Term)
United States v. Guinn, 81 M.J. 195 (under Article 66, UCMJ, the CCA has the responsibility to ensure that the sentence imposed on an appellant is correct in law; for example, it has the responsibility to ensure that the adjudged and approved sentence in a particular case does not exceed the maximum penalty authorized under the applicable punitive article; the CCA also has the responsibility under Article 66 is to determine whether the sentence imposed on an appellant should be approved; for example, it must determine the appropriateness of an adjudged and approved sentence in light of the underlying facts adduced at trial, to include all extenuating and mitigating circumstances).
(when determining whether an imposed sentence is correct in law and should be approved, the CCAs are empowered to grant sentence relief based on post-trial confinement conditions).
(a court of criminal appeals not only has the authority but also the duty to ensure that the severity of an adjudged and approved sentence has not been unlawfully increased by prison officials).
(a prison policy will increase the severity of a sentence if the policy constitutes punishment within the meaning of the criminal law; however, as a general matter, the collateral administrative consequences of a sentence do not constitute punishment for purposes of the criminal law).
(if a CCA exercises its Article 66(c) authority to grant relief for post-trial confinement conditions that do not rise to the level of cruel and unusual punishment, then for it to fully perform its duties under Article 66(c) a CCA must at least consider such claims to determine whether an appellant is indeed entitled to sentence appropriateness relief).
(if an appellant claims that post-trial confinement conditions unlawfully increased the severity of the sentence, a CCA must consider whether the sentence is correct in law).
(Eighth Amendment/Article 55 claims are not a prerequisite for relief, and therefore are not a prerequisite for mandated consideration of an appellant’s Article 66(c) claim).
(a complete Article 66, UCMJ, review is a substantial right of an accused, and without this complete review, an appellant suffers material prejudice to a substantial right).
(in this case, the CCA failed to conduct a valid Article 66(c), UCMJ, sentence appropriateness review when it failed to consider appellant’s First Amendment (freedom of association) and Fifth Amendment (privilege against self-incrimination) claims that a prison policy prohibiting him as a child sex offender from having contact with his biological children unlawfully increased his sentence, even while entertaining his Eighth Amendment (cruel and unusual punishment) claims; the CCA was required to consider all of appellant’s constitutional claims in its sentence appropriateness review; by not resolving appellant’s constitutional claims, the CCA could not conclude his sentence was correct in law, let alone fulfill its separate duty to meaningfully determine whether that sentence should be approved in the event this was error; in other words, the CCA improperly declined to ensure that the severity of the adjudged and approved sentence was not unlawfully increased by prison officials and improperly declined to determine whether the confinement conditions caused Appellant’s length of imprisonment to no longer be appropriate).
(because a prison policy may increase the severity of a sentence and because a CCA has a statutory duty under Article 66(c), UCMJ, to review the legality of an appellant’s sentence, a CCA cannot ignore an appellant’s claims that a prison policy rendered an approved sentence incorrect in law even if that claim does not invoke the protections afforded under the Eighth Amendment).
(CCAs do not have unlimited authority to grant sentence appropriateness relief for any conditions of post-trial confinement of which they disapprove; however, these courts do have the authority to grant sentence appropriateness relief when the prison policy was based on a legal deficiency in the post-trial process).
(the CCAs have significant discretion in how they resolve sentence appropriateness claims, but they have a duty to do so one way or another; a CCA must determine whether it finds the sentence to be appropriate, but then it is within its sound discretion to determine how that sentence appropriateness review should be resolved).
(because the CCAs are required to review whether a sentence is appropriate, they must address an appellant’s claim that a specific prison policy contained a legal deficiency that rendered the sentence inappropriate).
(although courts should show deference to prison administrators because the problems of prisons in America are complex and intractable, and because courts are particularly ill equipped to deal with these problems, CCAs must at least consider prison policy claims in order to determine whether a sentence is correct in law or is appropriate and whether any relief is warranted; it remains within the broad discretion of the CCA to determine whether relief is actually warranted in a specific case).
(a CCA is the only court that can address an appellant’s First and Fifth Amendment claims in the context of its Article 66(c), UCMJ, sentence appropriateness review).
(CCAs are not a clearinghouse for post-trial confinement complaints or grievances, and only in very rare circumstances will sentence relief be granted when there is no violation of the Eighth Amendment or Article 55, UCMJ).
(a CCA’s authority to grant relief is not without limits; Article 66(c), UCMJ, empowers the CCAs to do justice in its sentence appropriateness review, with reference to some legal standard, but does not grant the CCAs the ability to grant mercy).
(an appellant who asks a CCA to review prison conditions must establish the following: (1) a record demonstrating exhaustion of administrative remedies (i.e., exhaustion of the prisoner-grievance system and a petition for relief under Article 138, UCMJ, except in unusual or egregious circumstances that would justify the failure to exhaust; (2) a clear record demonstrating the jurisdictional basis for the CCA’s action; and (3) a clear record demonstrating the legal deficiency in administration of the prison).
(in its sentence appropriateness review, a CCA must acknowledge that it has considered issues enumerated by the accused and its disposition of them, even if those issues seem facially frivolous; however, as long as a CCA indicates that it has considered an issue raised by an appellant, a single sentence disposition is sufficient).
(a CCA must consider all of an appellant’s constitutional claims to determine whether his sentence is correct in law or is appropriate).
2019 (October Term)
United States v. Gonzalez, 79 M.J. 466 (the CCA prejudicially erred when after setting aside one of appellant’s convictions and the sentence, it remanded the case to the convening authority with instructions to take one of three possible actions on remand, one of which included dismissing the specification at issue and reassessing the sentence with a sentence cap of a DD and confinement for six years; it also prejudicially erred in conducting a sentence reassessment in a footnote wherein it concluded that the sentence adjudged, absent the one conviction, would have been at least a DD and confinement for 6 years).
(in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence).
2017 (October Term)
United States v. Kelly, 77 M.J. 404 (Article 56(b), UCMJ, 10 USC § 856(b) (2012 & Supp I 2014), which mandates that an accused convicted of certain offenses be punished with a dismissal or dishonorable discharge, does not restrict a CCA’s ability to review a mandatory minimum sentence for sentence appropriateness, given the unrivaled statutory powers of the CCAs under Article 66(c), UCMJ, 10 USC § 866(c) (2012), which vests the CCAs with broad discretionary power to review sentence appropriateness; the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities; although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs; Article 56(b), UCMJ, does not impliedly repeal the CCAs’ vast powers; presumably, Congress was aware of Article 66(c)’s broad scope when it enacted Article 56 and thus would have explicitly limited Article 66(c) review if it so desired; accordingly, a CCA has the power to disapprove a mandatory minimum sentence set forth in Article 56, UCMJ).
(it is a settled premise that in exercising its Article 66(c) statutory mandate, a CCA has discretion to approve only that part of a sentence that it finds should be approved, even if the sentence is correct as a matter of law; given its awesome, plenary, de novo power of review, a CCA has a carte blanche to do justice).
2015 (September Term)
United States v. Gay, 75 M.J. 264 (the language of Article 66(c), UCMJ, states that a CCA “may” approve only that part of a sentence that it finds “should be approved”; the statute clearly establishes a discretionary standard for sentence appropriateness relief awarded by CCAs).
(a legal error or deficiency need not rise to the level of an Eighth Amendment or Article 55, UCMJ, violation in order for a CCA to provide Article 66(c), UCMJ, sentence appropriateness relief for post-trial confinement conditions).
(in this case, where the CCA found that a sentence was inappropriate because (1) appellant was placed in solitary confinement through no fault of his own and for an improper purpose, (2) the conditions of confinement were more severe than what appellant should have experienced, and (3) the confinement was ordered by an military official to avoid Article 12, UCMJ, violations (confinement in immediate association with foreign nationals) where an alternative solution was available, those conditions provided support for the exercise of the CCA’s discretionary sentence appropriateness authority; accordingly, the CCA did not abuse its discretion when it exercised its Article 66(c), UCMJ, sentence reassessment authority for post-trial confinement conditions despite its conclusion that the conditions did not rise to a violation of the Eighth Amendment or Article 55, UCMJ).
(CCAs do not have unlimited authority to grant sentence appropriateness relief for any conditions of post-trial confinement of which they disapprove; in order to grant sentence appropriateness relief, a CCA must base that relief on a legal deficiency in the post-trial process).
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (although a proportionality review of death sentences is not constitutionally required, Article 66(c), UCMJ, require a CCA to perform a proportionality review of a death sentence as part of the sentence appropriateness determination; this review is a general offense-oriented proportionality review, meaning that the CCA must consider whether the sentence is appropriate for the crimes of conviction and whether the sentence is generally proportional to those imposed by other jurisdictions under similar situations; to perform this latter function, the CCA may consider military cases, federal district court cases, and Supreme Court decisions on state cases involving circumstances similar to an appellant’s).
(even though the CCA did not explicitly include any discussion of a proportionality review of the death sentence in its opinion, appellant implicitly received a proper legal review under Article 66(c), UCMJ, where appellant raised an Article 66(c), UCMJ, proportionality challenge below, so the CCA was fully aware of the need to resolve this issue, and absent evidence to the contrary, the CCA judges are presumed to know and properly apply the law; given this presumption and these facts, the CCA implicitly performed its Article 66(c), UCMJ, proportionality review when it determined, both initially and on reconsideration, that appellant’s approved sentence was correct in law and fact).
United States v. Bennitt, 74 M.J. 125 (while the CCA enjoys broad discretion in reassessing a sentence, it cannot base its reassessment on an erroneous statement of law).
(after appellant’s conviction for involuntary manslaughter was set aside and dismissed as legally insufficient, the CCA reassessed appellant’s sentence and reimposed the same sentence appellant had received before his appeal; the CCA explained that evidence of the victim’s death was admissible aggravation evidence because appellant’s conviction of oxymorphone distribution on divers occasions included distribution of the drug to the deceased victim; however, the CCA erred as a matter of law in stating that appellant was convicted of distribution to deceased victim as part of his distribution conviction; while the CCA enjoys broad discretion in reassessing a sentence, it cannot base its reassessment on an erroneous statement of law; therefore the decision of the CCA must be reversed and remanded for sentence reassessment or a sentence rehearing).
2010 (September Term)
United States v. Zarbatany, 70 M.J. 169 (a judgment regarding sentence appropriateness should necessarily encompass a judgment that any additional Article 13, UCMJ, relief would be disproportionate in the context presented).
(meaningful relief for violations of Article 13, UCMJ, is required, provided such relief is not disproportionate in the context of the case, including the harm appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review).
2009 (September Term)
United
States v. Nerad, 69 M.J. 138 (in exercising
its statutory mandate under Article
66(c), UCMJ, a CCA has discretion to approve only a sentence, or such
part of a
sentence, that it determines, on the basis of the entire record, should
be
approved, even if the sentence is legally correct; even that broad
discretion
is not unfettered, however; the CAAF may review a CCA’s sentence
appropriateness
determination for abuse of discretion).
(decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA).
(when the CCA is exercising
its power over
sentence appropriateness generally, it may consider both adjudged and
approved
sentences).
United
States v. Ashby, 68 M.J. 108 (Article 66(c),
UCMJ, vests in the courts of
criminal appeals broad authority to determine the findings and sentence
that
should be approved; in conducting its sentence appropriateness review
under Article
66(c), UCMJ, a court of criminal appeals has broad discretion to grant
or deny
relief for unreasonable or unexplained post-trial delay; the power to
review a
case for sentence appropriateness is vested in the courts of criminal
appeals,
and not in CAAF, which is limited to errors of law).
United
States v. Schweitzer, 68 M.J. 133 (a court of
criminal appeals may
affirm only the sentence or such part or amount of the sentence, as it
finds
correct in law and fact and determines, on the basis of the entire
record,
should be approved; under Article 66(c), a CCA has the authority to
grant
relief for excessive post-trial delay without a showing of actual
prejudice
within the meaning of Article 59(a), UCMJ, if it deems relief
appropriate under
the circumstances; the CCA is required to determine what findings and
sentence
should be approved, based on all the facts and circumstances reflected
in the
record, including unexplained and unreasonable post-trial delay).
(because in the absence of
evidence to the contrary, judges of the courts of criminal appeals are
presumed
to know the law and to follow it, there is no reason to doubt that the
CCA
panel in appellant’s case considered discretionary relief before
affirming his
sentence; furthermore, under the totality of the circumstances, the CCA
did not
abuse its discretion in not granting discretionary sentencing relief on
the
basis of the eight-year delay from the announcement of the sentence
until its
original opinion).
Denedo
v. United States,
66 M.J. 114 (in addition to issues of law, the scope of
review at the court of criminal appeals extends to factual sufficiency
and
sentence appropriateness).
United States v. Beatty, 64 M.J. 456 (in their review
of the sentence appropriateness of a court-martial conviction, courts
of criminal appeals may consider not only evidence admitted at trial,
but also the matters considered by the convening authority in his
action on the sentence).
United States v. Simon, 64 M.J. 205 (because a
sentence appropriateness analysis under Article 66(c), UCMJ, is highly
case specific, the details of a servicemember’s post-trial situation
constitute an important element of a CCA’s analysis).
2006
United
States v. Toohey, 63 M.J. 353 (the court of criminal appeals abused
its
discretion by denying sentence appropriateness relief under Article
66(c),
UCMJ, for unreasonable post-trial delay by requiring that a case rise
to the
level of “most extraordinary” before the court would consider
exercising its
unique Article 66(c), UCMJ, authority).
(a court of criminal appeals
has the
power to grant sentence relief under Article 66(c), UCMJ, where there
has been
unreasonable post-trial delay, and the exercise of that power does not
require
a finding of prejudice, nor are there any criteria limiting the
exercise of
that power to only the “most extraordinary” cases; the essential
inquiry
remains appropriateness in light of all circumstances, and no single
predicate
criteria of “most extraordinary” should be erected to foreclose
application of
Article 66(c), UCMJ, consideration or relief; moreover, the
responsibility of
the court of criminal appeals to affirm only so much of the sentence as
should
be approved does not implicate Article 59(a), UCMJ).
2005
United
States v. Bodkins, 60 MJ 322 (a court of criminal
appeals must
review the record in each case referred to it and may affirm only such
findings
of guilty and the sentence or such part or amount of the sentence as it
finds
correct in law and fact and determines, on the basis of the entire
record,
should be approved; in performing its affirmative obligation to
consider
sentence appropriateness, the court must take into account all the
facts and
circumstances reflected in the record, including any unexplained and
unreasonable
post-trial delay).
United
States v. Baier, 60 MJ 382 (in this case, the lower
court
concluded its sentence appropriateness analysis by stating that
appellant
“received the individual consideration required based on the
seriousness of his
offenses and his own character, which is all the law requires;” based
on that
language, it is impossible for us to determine whether the lower court
conducted an independent assessment of the appropriateness of
appellant’s
sentence or merely deferred to the “individual consideration” appellant
had
previously received from the military judge and the convening
authority; nor
can we determine whether the lower court independently assessed the
sentence’s
appropriateness for this particular offender or merely determined that
the
sentence was not so disproportionate to the crime as to cry out for
equalization).
(a
Court of
Criminal Appeals must determine whether it finds the sentence to be
appropriate; it may not affirm a sentence that the court finds
inappropriate,
but not so disproportionate as to cry out for reduction; as the Army
Court has
recognized, Article 66(c)’s sentence appropriateness provision is a
sweeping
Congressional mandate to ensure a fair and just punishment for every
accused;
Article 66(c) requires that the members of the Courts of Criminal
Appeals
independently determine, in every case within their limited Article 66,
UCMJ,
jurisdiction, the sentence appropriateness of each case they
affirm).
2002
United
States v. Hutchinson, 57 MJ 231 (during review of
the
sentence approved by the convening authority, the Court of Criminal
Appeals
must review the entire record and determine whether the sentence
approved by
the convening authority should be approved or whether the court should
approve
only a part or amount of the sentence).
(the power to review a case for sentence appropriateness includes
but is not
limited to consideration of: uniformity and evenhandedness of
sentencing
decisions; a sentence imposed by a civilian court in a closely related
case;
information that the accused brought to the attention of the convening
authority,
the allied papers; the record of trial proceedings; the wisdom,
experience, and
expertise of the appellate judges of the court including potential
impact of
administrative and nonjudicial means of disposition under service
regulations,
customs, and policies).
(a remand for a de novo review of appellant’s military sentence
under
Article 66(c) was necessary to ensure that the Court of Criminal
Appeals
properly limited its review to considering whether the military
sentence is
inappropriate, and to eliminate the possibility that the Court of
Criminal
Appeals acted because it viewed state court proceedings as
inappropriate and
sought to lessen the punishment from those proceedings).
United
States v. Washington, 57 MJ 394 (in reviewing a
case for
sentence appropriateness, the Courts of Criminal Appeals are not
required to
compare appellant’s case to other specific cases unless the appellant
demonstrates that his or her case is closely related to the case or
cases
offered for comparison; mere similarity of offenses is not sufficient).
(in review of sentence appropriateness decisions by the Courts of
Criminal
Appeals, Court of Appeals for the Armed Forces will determine whether
the lower
court abused its discretion or caused a miscarriage of justice in
exercising
its highly discretionary sentence review function).
2001
United
States v. Sothen, 54 MJ 294 (Court of Criminal
Appeals is
required to engage in sentence comparison only in those rare instances
in which
sentence appropriateness can fairly be determined only by reference to
disparate sentences adjudged in closely related cases).
(an appellant who asks the Court of Criminal Appeals to engage in
sentence
comparison bears the burden of demonstrating that any cited cases are
“closely
related” to the appellant’s case, and that the sentences are “highly
disparate”; if the appellant meets that burden, or if the court raised
the
issue on its own motion, the burden shifts to the government to show a
rational
basis for the disparity).
(there is nothing in the plain language of Article 66, in its
legislative
history, or in case law of Court of Appeals for the Armed Forces that
would
preclude the Courts of Criminal Appeals from engaging in sentence
comparison
when there is a closely related case from the civilian sector
(involving a
civilian co-actor, for example) with a highly disparate sentence).
(after plotting to have his wife murdered, appellant was sentenced
to, inter
alia, 25 years’ confinement; his civilian co-actor received a
sentence
including, inter alia, 3 years’ confinement; Court of Criminal
Appeals
did not abuse its discretion with respect to sentence appropriateness
and
articulated a rational basis for this sentence disparity by citing the
following reasons: (1) the parties were tried by two different
sovereigns; (2) sentence comparison between civilian and military cases
is less
persuasive than comparison among courts-martial in light of the
differences
between civilian and military approaches to sentencing and punishment;
(3)
appellant was convicted of multiple serious offenses, while his
co-actor was
convicted only of a single count of solicitation; (4) the charges
against
appellant were contested, while the conviction of the civilian co-actor
was
based on a voluntary, negotiated plea of guilty; and (5) the sentence
of
appellant’s co-actor reflected the fact that she had agreed to assist
the
prosecution by testifying against appellant).
United States v. Durant, 55 MJ 258 (Congress has vested responsibility for determining sentence appropriateness in the Courts of Criminal Appeals, and this task includes considerations of uniformity and evenhandedness of sentencing decisions).
(sentence comparison does not require sentence equation).
(where the lower court fails to articulate its rationale for affirming a sentence in the face of closely related cases with highly disparate sentences, Court of Appeals for the Armed Forces will affirm only where the respective records of trial clearly manifest differences in these two soldier’ cases that explain the respective sentences).
United States v. Wacha, 55 MJ 266 (Courts of Criminal Appeals are required to engage in sentence comparison with specific cases when they perform their Article 66(c) sentence appropriateness review in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases).
(there is no limitation on the Court of Criminal Appeals’ discretion to consider and compare other courts-martial sentences when that court is reviewing a case for sentence appropriateness and relative uniformity).
(Congress has vested responsibility for determining sentence appropriateness in the Courts of Criminal Appeals, and that responsibility includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions).
(assuming arguendo that Court of Criminal Appeals was unduly restrictive in performing its sentence appropriateness function by declaring that it could not consider and compare other court-martial sentences with that of this appellant unless the cases were closely related and the sentences were highly disparate, that court did not abuse its discretion in finding that appellant’s sentence was relatively uniform and appropriate; a fair reading of the lower court’s opinion is convincing that the judges went beyond a mere comparison to a co-actor’s sentence when determining that appellant’s sentence was both relatively uniform and appropriate).
1999
(proportionality review required by Article 66(c), UCMJ, is a general offense-oriented proportionality review).
(proportionality review required by Article
66(c), UCMJ, was properly conducted in appellant’s case by considering
Supreme Court decisions on state cases which presented situations
similar to appellant’s).