UNITED STATES, Appellee
v.
Troy B. JENKINS, Quartermaster
Third Class
No. 03-0473
Crim. App. No. 200101151
Argued
Decided
BAKER, J., delivered
the opinion of the Court, in which CRAWFORD, C.J., GIERKE, EFFRON, and
ERDMANN,
JJ., joined.
For Appellant:
Lieutenant Elysia G. Ng, JAGC, USNR
(argued).
For Appellee:
Captain Glen R. Hines Jr., USMC (argued); Colonel M.
E. Finnie,
USMC, and Lieutenant Lars C. Johnson, JAGC, USNR (on brief).
Military
Judge: D. M. White
This
opinion is
subject to editorial correction before final publication.
Judge
BAKER delivered the opinion of the Court.
On
This Court granted review of the
following
issues:
I
WHETHER
THE
II
WHETHER THE
At
heart, the question presented by granted Issue I is whether Appellant
received
the legal and factual review he was entitled to under Article 66(c),
UCMJ, 10
U.S.C. § 866(c) (2000). Because we
cannot conclude that he received such an assessment, we remand for a
new
Article 66(c) review conducted by a separate panel comprised of judges
who did
not participate in Appellant’s prior evaluation.1
Background
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.
With respect to Issue II,
Appellant complains
that the CCA relied on testimony from the victim relating to Charge
III, which
Appellant contested, in upholding the factual providence of Appellant’s
pleas
to Charges I and II. The victim’s
testimony is recited in the CCA’s opinion within those paragraphs
derived from
the Government’s Answer. See Jenkins,
NMCM 20010115, slip op. at 5-6.
The lower court’s opinion also
includes the
following original paragraph:
We have carefully reviewed the record of
trial, Appellant's five assignments of error, the Government’s answer,
and
Appellant’s reply. We conclude that
there is merit in Appellant’s summary fifth assignment of error and
that Appellant
is entitled to relief. We shall take
appropriate corrective action in our decretal paragraph.
In all other respects we conclude that the
findings and sentence, upon reassessment, are correct in law and fact
and that
no error materially prejudicial to the substantial rights of Appellant
was
committed. Arts.
59(a) and 66(c), UCMJ.
Jenkins, NMCM 200101151, slip op. at 2
(footnote
omitted).
Based on these facts, Appellant
argues that
he has not received the independent CCA review of his conviction that
he is
entitled to under Article 66(c).
Further, Appellant maintains that the CCA abandoned its
impartiality as
an independent court, denying him his due process of law.
Based on the lower court’s
statement that it
carefully reviewed the record of trial, as well as its decision to
grant relief
to Appellant, the Government argues that there was no error in the
CCA’s review
of Appellant’s case. The Government also
contends there was no appearance of partiality by the lower court. Moreover, the Government maintains that it is
not possible for this Court to evaluate the independence of the CCA’s
review
without piercing the veil of the lower court’s deliberative process,
something
this Court either should not do or is lawfully precluded from doing.
Discussion
Article 66 provides the statutory
underpinning for the service Courts of Criminal Appeal.
Among other things, the Article provides
that
[i]n
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.
Article
66(c), UCMJ.
The
legislative history makes it clear that Congress intended the CCAs to
serve as
appellate bodies independent of the Judge Advocate Generals and
Government
appellate attorneys.2 The
CCAs are intended to not only uphold the law, but provide a source of
structural integrity to ensure the protection of service members’
rights within
a system of military discipline and justice where commanders themselves
retain
awesome and plenary responsibility.3 For
this reason, Congress endowed the CCAs with authority to find facts as
well as
address questions of law. As this Court
has often noted, such authority is awesome, including as it does “broad
factfinding power and plenary de novo power to review questions of law.” United States v. Duncan, 38 M.J. 476,
479 n. 7 (C.M.A. 1993)(citing United
States v. Cole,
31 M.J. 270 (C.M.A. 1990)). See also United States v. Quiroz, 55 M.J.
334, 338
(C.A.A.F. 2001); United States v. Weatherspoon, 49 M.J. 209,
212
(C.A.A.F. 1998).
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. On the one hand,
there are indicia within the opinion of independent review. The lower court stated that it carefully
reviewed the record, including the Government’s Answer and Appellant’s
Reply,
and based on that evaluation concluded that Charges I and II should be
affirmed. Moreover, the lower court
granted Appellant relief in response to one of his five assigned
errors,
reassessed his sentence, and granted six months relief.
Clearly, this action, which the Government
opposed, was taken pursuant to the CCA’s independent Article 66(c)
authority.
On the other hand, the portions of
the
Government’s Answer incorporated into the CCA’s opinion are substantial. This material includes matters of fact,
including contested facts, as well as matters of law.
In the Article 66(c) context, replication of
a party’s brief 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. See
Duncan, 38 M.J. at 479 (citing Cole, 31 M.J. at 270). 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.
Article 66(c) review is a
substantial
right. It follows that in the absence of
such a complete review, Appellant has suffered material prejudice to a
substantial right.
Decision
The decision of the United States
Navy-Marine
Corps Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge Advocate General of
the
Navy for remand to that court for a new Article 66(c) review before a
panel
comprised of judges who have not previously participated in this case.
1 In
light of this Court’s decision regarding
Issue I, we need not address Issue II.
2 See Bill
to Unify, Consolidate, Revise, and Codify the Articles of War, the
Articles for
the Government of the Navy, and the Disciplinary Laws of the Coast
Guard, and
to Enact and Establish a Uniform Code of Military Justice: Hearings on
S. 857
and H.R. 4080 Before a Subcomm. of the Comm. on Armed Services,
81st Cong.
151 (1949)(statement of Colonel John P. Oliver, Judge Advocate General,
Reserve, Legislative Counsel of the Reserve Officer’s
Association)(“Article of
War 66, subparagraph (e), page 53, as has been stated by many of the
other
witnesses, we do not feel it sound judicial procedure to permit the
Judge
Advocate General who is displeased with an opinion by one board of
review, to
refer the case back or to another board of review.
Surely, no board of review can act honestly
and independently under such supervision and restriction.”).
3 See id.
at 623 (statement of Frederick P. Bryan, Chairman, Special Committee on
Military Justice of the Bar Association of the City of New York)(“The new set-up of the courts, whereby you have
a law
officer on the one hand who exercises judicial function and the lay
members of
the court . . . on the other who in effect perform the functions of a
jury, is
excellent. I think that that serves
again as a measure of protection to the accused.”).