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29. Appeals and Writs

Chapter 29

Appeals & Writs


  1.       Government Appeals

  2.       Extraordinary Writs

  3.       Victim Writs

  4.       Waiver and/or Withdrawal of Appellate Review

  5.       Appeals at the Courts of Criminal Appeals

  6.       Review by the Court of Appeals for the Armed Forces

  7.       Finality of Courts-Martial

  8.       Petition for a New Trial


I. Government Appeals

A. Article 62, UCMJ; R.C.M. 908(a).  In a trial by a court-martial over which a military judge presides the United States may appeal an order or ruling that terminates the proceedings with respect to a charge or specification, excludes evidence that is substantial proof of a fact material in the proceedings, or affects the disclosure or nondisclosure of classified information.  However, the United States may not appeal an order or ruling that is, or amounts to, a finding of not guilty, with respect to the charge or specification.  Under the MJA 2016, Article 62 will be expanded to cover ANY general or special court-martial.  There will no more requirement for the possibility of a punitive discharge.  In addition, the MJA 2016 will expand the potential bases for an interlocutory appeal by adding pretrial proceedings under Art. 30a. Where a military magistrate presides, the Government may still appeal the ruling, but it must present the issue to a military judge.  The MJA 2016 will also allow for the Government to appeal an order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members. Finally, Art. 62 will include an express requirement to “liberally construe” its provisions to effect its purposes. See United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). This may be a nod to the potential for interlocutory appeals during Art. 30a proceedings where it may be difficult for the Government to meet one of the above bases for appeal.

IMPORTANT NOTE – the MJA 2016 will add another type of Government right of appeal, under the revised Art. 56(d), specifically, the right to appeal sentences under certain circumstances. This new provision will be covered below as part of the discussion about changes to appellate review under the MJA 2016.

B. Qualifying Proceeding (reflecting MJA 2016 changes).

1. General or special court-martial; or

2. A pretrial proceeding under Art. 30a.

C. Qualifying Ruling.

1. “. . . order or ruling that terminates the proceedings with respect to a charge or specification.”  R.C.M. 908(a).

a. Howell v. United States, 75 M.J. 386 (C.A.A.F. 2015).  Article 62 limits interlocutory appeals – an appeal that occurs before the trial court’s final ruling on the entire case; this case was not an interlocutory appeal because the trial court had issued findings and sentence and the military judge had authenticated the record before the government appealed. 

2. “. . . order or ruling . . . which excludes evidence that is substantial proof of a fact material....”  R.C.M. 908(a).

a. United States v. Jacobsen, 77 M.J. 81 (C.A.A.F. 2017).  The language in Art. 62(a)(1)(B)’s second prong – the evidence excluded by a military judge’s trial ruling was evidence that is substantial proof of a fact material in the proceeding – is also a threshold jurisdictional requirement for an interlocutory government appeal. While the Government must certify such in any Art. 62 appeal, the Court will look beyond the certification to determine whether appellate jurisdiction exists.

b. United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014).  The proper test to apply when determining whether a ruling excludes evidence under Article 62, UCMJ, is whether the ruling at issue in substance or in form has limited the pool of potential evidence that would be admissible. A military judge’s denial of a government’s request for a continuance to accommodate the availability of witnesses did not constitute an exclusion of evidence appealable under Article 62.

c. United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010) (finding that a military judge’s decision to not “preadmit” evidence did not constitute “[a]n order or ruling which excludes evidence that is substantial proof of fact material in the proceeding). 

d. United States v. Pacheco, 36 M.J. 530 (A.F.C.M.R. 1992) (“it is not necessary that the evidence suppressed be the only evidence in the case”); United States v. Hamilton, 36 M.J. 927 (A.F.C.M.R. 1993).

3. Or, the functional equivalent of an R.C.M. 908 appealable order. 

a. United States v. Sepulveda, 40 M.J. 856 (A.F.C.M.R. 1994).  The MJ granted defense’s motion to dismiss three specifications of indecent acts as lesser-included offenses of three indecent assault specifications also charged, and further granted defense’s motion to consolidate three specs of indecent assault into one specification.  AFCMR found jurisdiction for appeal appropriate to determine whether dismissal should be with or without prejudice, because the MJ terminated proceedings with regard to indecent acts specifications.  Jurisdiction was also proper with regard to the consolidated specifications since consolidation is a functional equivalent of dismissal.

b. United States v. True, 28 M.J. 1 (C.M.A. 1989).  The MJ’s abatement order was the “functional equivalent” of a ruling that terminates the proceedings.  The MJ ordered the Government to provide a defense expert and the CA would not pay.   Use the “practical effects” test.  See also United States v. Metcalf, 34 M.J. 1056 (A.F.C.M.R. 1992).

c. United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006).  MJ’s abatement order in this case was not a “termination of proceedings” and the Government appeal was not valid under Article 62, UCMJ.   MJ simply abated proceedings pending enforcement of a warrant of attachment; in this case the Government acknowledged that the Marshal’s Service had not enforced the writ of attachment the MJ issued to obtain certain records.   

4. BUT NOT “an order or ruling that is, or amounts to, a finding of not guilty of a charge or specification.”

a. United States v. Adams, 52 M.J. 836 (A.F. Ct. Crim. App. 2000).  Appellate court lacked jurisdiction to hear government appeal of military judge's granting of defense motion for a finding of not guilty pursuant to R.C.M. 917.  But see United States v. Brooks, 41 M.J. 792 (Army Ct. Crim. App. 1995).  A court-martial panel president announced guilty to specification “by absolute majority.”  Voir dire of the panel indicated several straw votes were taken on the specification - which resulted in insufficient votes to convict - MJ entered finding of not guilty to specification.  Government filed appeal under R.C.M. 908.  The appellate court had jurisdiction, notwithstanding a finding of not guilty, since MJ’s characterization of the action was not controlling, and since the case was a members trial, only the panel could evaluate the evidence and render findings as to guilt or innocence (except for R.C.M. 917 finding).  Therefore, the act of the MJ amounted to a dismissal with prejudice, and was a proper subject for government appeal.

5. Classified Information.  The 1996 expansion of Art. 62, and 1998 changes to R.C.M. 908(a), permits appeal of a judge’s order or ruling directing disclosure of classified information or imposing sanctions for nondisclosure of classified information.  The government may also appeal a refusal of the judge to issue a protective order to prevent disclosure of classified information, or refusal to enforce such an order previously issued by competent authority.

D. Nature of Appellate Review

1. Review by Court of Criminal Appeals.  When reviewing matters under Article 62(b), UCMJ, a CCA may act only with respect to matters of law.  The question during such a review is not whether the reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.  United States v. Baker, 70 M.J. 283 (C.A.A.F. 2010).  The appellate court will review the military judge’s decision directly and will review the evidence in the light most favorable to the party which prevailed below.  United States v. Buford, 74 M.J. 98 (C.A.A.F. 2014)

2. Further appellate review.  In United States v. Lopez de Victoria, 66 M.J. 67 (2008), the CAAF decided 3-2 that it had statutory authority to exercise jurisdiction over the courts of criminal appeals’ decisions in Article 62 cases despite the absence of an express grant of authority in Article 67(a).  Relying on the express language in Article 67(a) that the CAAF has jurisdiction over “all cases reviewed by a Court of Criminal Appeals . . . ,” the majority reasoned that Congress intended uniformity in the application of the Code between the services.  If “all cases” did not include government appeals, which are by their very nature interlocutory appeals, then the purpose of the statute would be defeated.  The dissent reasoned that nothing in the plain language of Article 62, Article 67, or any other statute grants the CAAF the statutory authority to entertain an Article 62 appeal.

E. Government Appeal Procedure at the Trial Level.

1. Trial counsel may request a delay of not more than 72 hours.  R.C.M. 908(b)(1).

2. A court-martial may not proceed, except as to matters unaffected by the ruling or order.

3. The decision to file a notice of appeal with the judge must be authorized by the SJA or the GCMCA.  For example, see Dep’t. of Army, Reg. 27-10, Military Justice, para. 12-3 (11 May 2016).  This is not expected to change with the new AR 27-10.

4. Written notice of the appeal must be filed with the military judge not later than 72 hours after the ruling or order.  R.C.M. 908(b)(3).

a. United States v. Daly, 69 M.J. 485 (C.A.A.F. 2011).  The CAAF held the Government’s action was untimely because it failed to file either a motion for reconsideration of the order to dismiss or a notice of appeal within the seventy-two-hour period of government appeals authorized in Article 62(a)(2), UCMJ.  Instead, the Government took twelve days to finalize and submit a brief to the military judge asking for reconsideration of the order to dismiss.

b. United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010).  The government has an unqualified seventy-two hour period to file a notice of appeal.  The government need not request a delay in the proceedings in order to preserve the seventy-two hour period for filing a notice of appeal.

c. United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994).  The appellate court found R.C.M. 908 provision to file appeal within 72 hours mandatory, and a MJ has no authority to extend the time for filing appeal notice.  To avoid procedural issues in the future, the court recommended the following: 1) MJ should enter essential findings contemporaneously with ruling on motion; 2) MJ should state on record that his action is ruling of the court; 3) if MJ rules adverse to the government on a significant matter, the MJ should then ascertain on the record whether the government is contemplating an appeal; and, 4) if the government is contemplating an appeal, the MJ should state on record the time of the ruling, i.e., the time the 72-hour period will run, and how and where the government may provide the MJ with written notice of appeal.  See also United States v. Santiago, 56 M.J. 610 (N.M.C.C.A. 2001).

5. Written notice to the military judge shall (R.C.M. 908(b)(3)):

6. Specify the order appealed and the charges and specifications affected.

7. Certify that the appeal is not for the purpose of delay.

8. Certify that the evidence excluded is substantial proof of a material fact.  But see United States v. Jacobsen, 77 M.J. 81 (C.A.A.F. 2017).  

9. Automatic Stay.  Notice of appeal “automatically stays” trial proceedings except as to unaffected charges or specifications.  R.C.M. 908(b)(4).

a. Motions may be litigated in the judge’s discretion.

b. If trial on merits has not begun:

(1) Severance at the request of all parties.

(2) Severance requested by the accused to prevent manifest injustice.

10. If trial on merits has begun: a party may put on additional evidence within the judge’s discretion.

11. Requesting reconsideration.

a. Should be undertaken upon requestUnited States v. Tucker, 20 M.J. 602 (N.M.C.M.R. 1985)But see United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990) (military judge did not abuse his discretion in denying the prosecution’s request to reopen after granting the defense motion to suppress the accused’s confession).

b. Scope of reconsideration.  Harrison v. United States, 20 M.J. 55 (C.M.A. 1985).  A trial judge has inherent authority, not only to reconsider a previous ruling on matters properly before him, but also to take additional evidence in connection therewith.

c. Effect of reconsideration and time limits.  United States v. Santiago, 56 M.J. 610 (N.M.C.C.A. 2001).  The denial of a reconsideration ruling can be appealed, and the time limit within which to appeal does not start until the trial court rules on the petition for reconsideration.  While the MCM does not address timeliness of request for reconsideration, the time limits from Article 62 and R.C.M. 908 are appropriately applied to such requests in assessing the timeliness for purpose of appeal.

12. Tolls Speedy Trial.  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. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2014).  The government gets a NEW 120 DAY CLOCK.  R.C.M. 707(b)(3)(C).

13. Pretrial confinement of accused pending government appeal.  R.C.M. 908(b)(9):  If an accused is in pretrial confinement at the time the United States files notice of its intent to appeal, the commander, in determining whether the accused should be confined pending the outcome of an appeal by the United States, should consider the same factors which would authorize the imposition of pretrial confinement under R.C.M. 305(h)(2)(B).

14. Record of trial: 

15. Prepared and authenticated to the extent necessary to resolve the issue appealed. R.C.M. 908(b)(5).

16. Essential findings.

a. When ruling on motions to suppress evidence, military judges are required to state their essential findings of fact on the record (R.C.M. 905(d)).

b. Findings should be logical and complete enough so that there is no need to resort to other parts of the record for meaning.

c. Military judge should state the legal basis for the decision—the legal standards applied and the analysis of the application of these standards to the facts previously stated.

d. Military judge should state any conclusions made and the decision.

e. Help frame issues at the trial level; seek clarity and precision in judge’s ruling.

17. Military judge or Court of Criminal Appeals may require additional portions of the record.

18. “Forwarding” of the appeal to government representative, designated by the Judge Advocate General.  R.C.M. 908(b)(6).  The matter forwarded shall include:

19. Statement of the issues appealed.

20. The original record or summary of the evidence.

21. Such other matters as the Secretary concerned may prescribe

22. The government must forward the appeal to the government representative within 20 days from the date written notice of appeal is filed with the trial court.  Article 62.

a. United States v. Crain, 2018 CCA LEXIS 140 (Army Ct. Crim. App. Mar. 15, 2018) (summ disp.).  Government appeal dismissed for lack of jurisdiction for failure to promptly forward an original and 2 copies of the record IAW A.C.C.A. Rule 21. Cf. R.C.M. 908(b)(6) (“Upon written notice to the military judge under paragraph (b)(3) of this rule, trial counsel shall promptly and by expeditious means forward the appeal to a representative of the Government designated by The Judge Advocate General.”) (emphasis added).

b. United States v. Combs, 38 M.J. 741 (A.F.C.M.R. 1993).  Government appeal properly dismissed for failure to promptly forward.

c. United States v. Snyder, 30 M.J. 662 (A.F.C.M.R. 1990).  The government failed to forward the authenticated ROT within 20 days; the accused had remained in pretrial confinement pending resolution of appeal.  HELD:  “The right to liberty is too fundamental to apply an ‘almost good enough’ standard to the government’s actions.”

23. Mailing within 20 days meets the requirements of “forwarding."  United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991) aff'd  36 M.J. 2 (C.M.A. 1992).

24. The Chief, Government Appellate Division, makes the decision whether to file the appeal; therefore coordinate with Government Appellate from the beginning.

F. Government Appeal Procedure at the Appellate Level

1. Initially, must be filed at Court of Criminal Appeals.

2. Appellate counsel represent the parties.  But trial counsel and trial defense counsel must maintain close contact with appellate counsel.

3. Courts of Criminal Appeals “may take action only with respect to matters of law.”  See United States v. Solorio, 21 M.J. 251 (C.M.A. 1986).  A Court of Criminal Appeals has no authority to find facts in an Article 62 appeal.  See United States v. Baker, 70 M.J. 283 (C.A.A.F. 2010).

4. Standard of review.

a. Did the military judge “err as a matter of law”?

(1) Questions of law are reviewed de novo.  United States v. Kosek, 41 M.J. 60 (C.A.A.F. 1994).

(2) See United States v. Rittenhouse, 62 M.J. 509 (A.C.C.A. 2005) (holding military judge erred in applying the law to computer evidence and admissions). 

b. Findings of fact  

(1) “[I]f a military judge’s finding of fact is supported by the evidence of record (or lack thereof), then it shall not be disturbed on appeal taken under Article 62.”  United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990)

(2) United States v. Lincoln, 42 M.J. 315 (1995).  N.M.C.M.R. reversed MJ on a government appeal of the suppression of a confession, and ordered the confession admitted into evidence.  CAAF noted, “on questions of fact the appellate court is limited to determining whether the military judge’s findings are clearly erroneous or unsupported by the record.  If the findings are incomplete or ambiguous, the ‘appropriate remedy . . . is a remand for clarification’ or additional findings.”

(3) United States v. Reinecke, 30 M.J. 1010 (A.F.C.M.R. 1990).  When ruling on motions to suppress, the MJ is required to state essential findings on the record; findings stated separately and succinctly; findings logical and complete enough so the appellate court does not have to resort to other parts of record for meaning; after stating findings, MJ should state legal basis for decision, i.e., legal standards applied and analysis of the application of the standards to the facts previously stated; and, MJ should state any conclusions made and why.

(4) BUT “clearly erroneous” factual findings do not bind Courts of Criminal Appeals. 

(5) United States v. Burris, 21 M.J. 140 (C.M.A. 1985); United States v. Clarke, 23 M.J. 519 (A.F.C.M.R. 1986), aff’d 23 M.J. 352 (C.M.A. 1987)  “We will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law….”  United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005), citing United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004)

(6) United States v. Hatfield, 43 M.J. 662 (N.M.C.C.A. 1995).  MJ dismissed charges on speedy trial grounds.  NMCCA reversed on government appeal, applying standard of review that “findings by the trial court are ‘clearly erroneous’ when, although there is some evidence to support them, the appellate court is left with the definite and firm conviction that a mistake has been made.”  Appellate court cannot simply substitute its own judgment of what constitutes “reasonable diligence.” 

5. The CAAF or U.S. Supreme Court may stay trial pending additional review.

II. Extraordinary Writs

A. The All Writs Act.

1. “All Writs Act.”  28 U.S.C. § 1651(a).  “The Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

2. “[A]ll courts established by act of Congress.”  Includes both Court of Appeals for the Armed Forces and service Courts of Criminal Appeals.  United States v. Dowty, 48 M.J. 102 (1998); McKineey v. Jarvis, 46 M.J. 870 (Army Ct. Crim. App. 1997).  See also Noyd v. Bond, 395 U.S. 683 (1969); United States v. Curtin, 44 M.J. 439 (C.A.A.F. 1996); Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979); McPhail v. United States, 1 M.J. 457 (C.M.A. 1976); United States v. Frischholz, 16 U.S.C.M.A. 150, 36 C.M.R. 306 (1966).

B. No Automatic Stay.  At trial, if a party (usually defense) seeks extraordinary relief, there is no requirement to continue the trial to allow the party to petition the appellate court.  If the appellate court grants a stay, however, the military judge must stop the proceedings pending resolution of the issue.

C. Theories of Jurisdiction.

1. Actual Jurisdiction: The authority of the appellate courts to review a court-martial on direct review.

a. Article 66, UCMJ—Court of Criminal Appeals jurisdiction.  The expansion of Art. 66 under the MJA 2016 will be discussed in more detail below.

b. Article 67, UCMJ—Court of Appeals for the Armed Forces jurisdiction.  Every court-martial in which the sentence as affirmed by a Court of Criminal Appeals extends to death . . . cases certified by the Judge Advocate General . . . and cases reviewed by Courts of Criminal Appeals where accused shows good cause for grant of review.

c. Article 69, UCMJ—Pursuant to the MJA 2016, the Court of Criminal Appeals will be able to review TJAG’s action under Art. 69 where TJAG orders the case to ACCA OR where the accused submits an application which demonstrates a “substantial basis for concluding that the action on review . . . constituted prejudicial error.”  This latter basis is new.  Cf. United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015) (Baker, J., dissenting) (“Whatever was intended with Article 69, UCMJ, the fact is TJAGs do not as a matter of practice refer cases to the CCA or to this Court pursuant to Article 69, UCMJ, review. That means that a majority of cases arising under the UCMJ are sub-jurisdictional. That also means that a majority of courts-martial are not subject to appellate judicial review or civilian judicial review.)

2. Potential Jurisdiction.  The authority to determine a matter that may reach the actual jurisdiction of the court.

a. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996).  Petition for writ of mandamus to open Article 32 hearing to public where USAF major charged with murder of child.  Court found jurisdiction to consider petition for extraordinary relief in exercising supervisory authority over court-martial process, and over cases that may potentially reach court on appeal.  Since Article 32 hearing is integral part of court-martial process, then court has jurisdiction to supervise each tier of military justice process.  And see, The Denver Post Corp. v.  The United States and CPT Robert Ayers, 2005 WL 6519929 Army No. 20041215, (February 23, 2005) (unpublished) (holding, pursuant to all writs authority, respondent’s decision to completely close the Article 32 clearly erroneous and a usurpation of authority, also finding the decision would resolve recurrent issues that would appear in future cases, and finding awaiting relief in the ordinary course of appellate review would be an inadequate remedy to preserve the public interest at issue).

b. U.S.N.M.C.M.R. v. Carlucci, et al, 26 M.J. 328 (C.M.A. 1988); Waller v. Swift, 30 M.J. 139, 142 (C.M.A. 1990).  (“The sentence adjudged by the court-martial included a punitive discharge and so was of a severity that would have authorized direct appellate review by this court.  Indeed, even in its commuted form, the sentence is of such severity.”).  See also Addis v. Thorsen, 32 M.J. 777 (C.G.C.M.R. 1991) (CCA had potential jurisdiction to review record of case in which accused petitioned for extraordinary relief in nature of writ of habeas corpus from adjudged confinement through referral of case by judge advocate general for review of record, and accordingly CCA had jurisdiction to entertain the extraordinary writ, although case was awaiting decision on accused's request for referral by judge advocate general)

3. Ancillary jurisdiction.  The authority to determine matters incidental to the court's exercise of its primary jurisdiction, such as ensuring adherence to a court order.   Boudreaux v. U.S.N.M.C.M.R., 28 M.J. 181 (C.M.A. 1989) (court retained ancillary jurisdiction over case which it had remanded, to ensure that case was resolved in manner consistent with mandate of court, notwithstanding that accused received punishment on remand well below the statutory threshold for mandatory review); United States v. Montesinos, 28 M.J. 38, n.3 (C.M.A. 1989) (Because the integrity of the judicial process is at stake, appellate courts can issue extraordinary writs on their own motion).

4. Supervisory Jurisdiction.  The broad authority to determine matters that fall within the supervisory function of administering the military justice system.

a. Unger v. Zemniak, 27 M.J. 349 (C.M.A. 1989).  Military appellate courts have jurisdiction to grant extraordinary relief under the All Writs Act over courts-martial that do not qualify for review in the ordinary course of appeal.

b. Jones v. Commander, 18 M.J. 198 (C.M.A. 1984) (Everett, C.J., dissenting).  The court refused to exercise writ jurisdiction over a nonjudicial punishment proceeding.

D. Actual v. Supervisory Jurisdiction; the All Writs Act and Goldsmith

1. Background:  Pre-Goldsmith Case Law.

a. ABC Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997).  Absent “good cause,” petitions for extraordinary relief should be submitted initially to the Court of Criminal Appeals.  The CAAF exercised supervisory jurisdiction under the All Writs Act to grant relief during an Article 32(b) Investigation.

b. Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998).  The CAAF has jurisdiction to issue a writ under the All Writs Act even after the case has been affirmed by the Supreme Court.  The accused sought extraordinary relief because his death sentence was based in part on a conviction of felony murder that was unsupported by a unanimous finding of intent to kill or reckless indifference to human life.  This was an issue raised by Justice Scalia during oral argument before the Supreme Court.  The CAAF heard the petition but denied relief.

c. United States v. Dowty, 48 M.J. 102 (C.A.A.F. 1998).  The CAAF has authority under the All Writs Act to exercise jurisdiction over issues arising from proceedings where the Court would not have had direct review.

d. Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998).  Under the All Writs Act, the Army Court has supervisory jurisdiction to consider, on the merits, a writ challenging the action taken by The Judge Advocate General pursuant to Article 69(a), UCMJ.  The accused was convicted of making and uttering worthless checks by dishonorably failing to maintain funds.  The Office of the Army Judge Advocate General reviewed the case and denied relief.  The accused petitioned the Army Court, challenging the decision made by the Office of the Judge Advocate General.  The Army Court exercised its supervisory authority under the All Writs Act, heard the petition, but denied relief.

e. Morgan v. Mahoney, 50 M.J. 633 (A.F. Ct. Crim. App. 1999).  The government involuntarily recalled the accused (a member of the retired reserves) to active duty to face a court-martial.  At trial, the accused challenged the jurisdiction of the court-martial.  The military judge denied the accused’s motion, and the accused petitioned the Air Force Court seeking an extraordinary writ ordering the military judge to dismiss all charges and specifications.  The service court held that it had jurisdiction under the All Writs Act to hear the issue and denied the accused’s relief.  In denying the writ, the court found that the accused was a member of retired reserves, which made him part of the reserve component and subject to lawful orders to return to active duty.  Since the accused was in an active duty status at the time of trial, the court-martial did not lack in personam jurisdiction.

2. Clinton v. Goldsmith, 529 U.S. 529 (1999).  The CAAF exercised supervisory jurisdiction under the All Writs Act to stop the government from dropping the accused from the rolls of the Air Force.  The Supreme Court held that the CAAF lacked jurisdiction, under the All Writs Act, to issue the injunction in question because, (1) the injunction was not "in aid of" the CAAF's strictly circumscribed jurisdiction to review court-martial findings and sentences; and (2) even if the CAAF might have had some arguable basis for jurisdiction, the injunction was neither "necessary" nor "appropriate," in light of the alternative federal administrative and judicial remedies available, under other federal statutes, to a service member demanding to be kept on the rolls.  In a unanimous decision, the Supreme Court held that CAAF exceeded its supervisory jurisdiction under the All Writs Act.

3. Jurisdiction Case Law (Post-Goldsmith). 

a. United States v. Byrd, 53 M.J. 35 (C.A.A.F. 2000). In October 1996, the Navy-Marine Corps Court affirmed the accused’s conviction and sentence, which included a punitive discharge.  The accused did not petition CAAF for review until 22 January 1997.  On 2 January 1997 the convening authority executed his sentence under Article 71.  The service court held that since the accused did not petition CAAF for review within 60 days, the intervening discharge terminated jurisdiction.  CAAF vacated the lower court's decision on the grounds that the government failed to establish the petition for review as being untimely and, therefore, the sentence had been improperly executed.  CAAF also stated it has jurisdiction to review such a case under the All Writs Act, notwithstanding execution of the punitive discharge, but declined to decide which standard of review was more appropriate, direct or collateral.

b. Ponder v. Stone, 54 M.J. 613 (N-M. Ct. Crim. App. 2000).  Accused refused order to receive anthrax vaccination and submitted a request for a stay of proceedings by way of a writ of mandamus.  Government argued that the Navy court lacked jurisdiction to entertain the petition under Goldsmith, because the court could only grant extraordinary relief on matters affecting the findings and sentence of a court-martial.  NMCCA disagreed, stating that review of the petition under the All Writs Act was properly a matter in aid of its jurisdiction.

c. Fisher v. Commander, Army Regional Confinement Facility, 56 M.J. 691 (N-M. Ct. Crim. App. 2001).  Accused filed petition for extraordinary relief.  The government argued that the appellate court had no jurisdiction to consider the petition because the accused’s court-martial was final under Article 76.  The NMCCA disagreed and considered the petition but denied it.

d. United States v. Denedo, 556 U.S. 904 (2009).   The accused filed an extraordinary writ in the Navy-Marine Court, alleging ineffective assistance of counsel almost ten years after his case had become final under Article 71.  The Navy-Marine Court denied relief.  The CAAF granted review of the accused’s extraordinary writ.  The government appealed the CAAF’s decision to the Supreme Court, asserting that neither the Navy-Marine Court nor the CAAF had jurisdiction in this case.  Without overturning Goldsmith, the Supreme Court ruled that the CAAF and the Navy-Marine Court did, in fact, have jurisdiction.  The Supreme Court reasoned that jurisdiction was proper since the accused’s petition directly challenged the validity of his conviction.   Article 76, UCMJ, addressing the finality of a court-martial conviction after completion of direct review, provides a prudential constraint on collateral review, not a jurisdictional limitation.

E. Extraordinary Circumstances.

1. Much like the military appellate courts, federal courts struggle with the scope of their jurisdiction under the All Writs Act.  The Supreme Court held that federal courts can exercise writ jurisdiction to protect the legal rights of parties, and are not limited to orders protecting just the courts’ own duties and jurisdiction.  See United States v. New York Telephone Co., 434 U.S. 159 (1977).

2. Ordinary course of appellate review of trial cannot give adequate relief.  Andrews v. Heupel, 29 M.J. 743 (A.F.C.M.R. 1989).  “An extraordinary writ is not to be a substitute for an appeal even though hardship may ensue from delay and perhaps an unnecessary trial.”

3. Circumstances warrant extraordinary relief. 

a. McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993).  Petitioner seeks extraordinary writ for release from confinement.  CA commuted BCD to four months, but did so five months after sentencing.  Accused was immediately taken to the brig at Camp Lejeune.  The brig determined that the accused’s sentence ran from date of sentence and not confinement and released the accused.  A week later, the accused was taken to an Army facility. The Army facility took the position that the accused’s sentence began on the date that the CA commuted the BCD to six months and incarcerated petitioner.  Proper subject for review by Court, and ordered release.

b. Keaton v. Marsh, 43 M.J. 757 (Army Ct. Crim. App. 1996).  Petition for writ of habeas corpus by accused who was ordered released from pretrial confinement by military magistrate, and subsequently ordered back into pretrial confinement by military judge.  Court found propriety of accused’s pretrial confinement proper subject for extraordinary writ, and ordered release.

c. Petition for writ of prohibition by accused who was a retiree challenging the right of the military justice system to exercise jurisdiction over him was an extraordinary situation warranting consideration.  Pearson v. Bloss, 28 M.J. 764 (A.F.C.M.R. 1989). See also Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992).

d. Toohey v. United States, No. 04-8019, 2004 CAAF LEXIS 656 (Jul. 2, 2004).  Petitioner seeks extraordinary writ for release from confinement because of lengthy appellate delay.  The chronology of the case indicates that the Petitioner has not received his first level of appeal as of right more than five years and ten months after his sentence was adjudged.  Court agrees that delay is unreasonable but does not order release.  Court gives Navy-Marine Corps Court 90 days to issue decision. 

e. United States v. Kreutzer, 60 M.J. 453 (C.A.A.F. 2005) (Crawford, J., dissenting).   As Petitioner not currently under sentence of death, writ of mandamus granted to the extent that Petitioner must be moved from death row.   

f. United States v. Buber, 61 M.J. 70 (C.A.A.F. 2005) (Crawford, J., dissenting). Army Court dismissed specification supporting remaining confinement and Government filed for reconsideration.  Writ of habeas corpus granted with direction to release Petitioner from post-trial confinement immediately.

4. Available remedies are exhausted.

5. Relief will advance judicial economy.

a. Maximize utility of judicial resources.

b. Resolve recurrent issues that will inevitably lead to more cases in the future.

c. To prevent a waste of time and energy of military tribunals.

F. Writ classifications.

1. Mandamus.  Directs a party to take action; rights are not established or created; pre-existing duty enforced.  In order to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.  See Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012).  

2. Prohibition.  Directs a party to cease doing an act or prohibits execution of a planned act that violates a law or an individual’s rights.

3. Error Coram Nobis.  “Error in our court”; a review of a court’s own prior judgment predicated on a material error of fact, or to correct constitutional or fundamental errors, including those sounding in due process.

4. Habeas Corpus.  “That you have the body”; directs the release of a person from some form of custody.

G. Filing a writ.

1. Preliminary Considerations.

a. Does the case qualify?

(1) Jurisdiction.

(2) Relief sought.

(3) Extraordinary Circumstance.

b. Must the military judge grant a continuance?

(1) Discretion of the military judge (R.C.M. 906(b)(1)).

(2) No automatic stay; but once a stay is issued by CCA or CAAF, proceedings must stop.

c. Which forum?

(1) There is a preference for initial consideration by a CCA.  See ABC, Inc. v. Powell, 47 M.J. 363 (1997); United States v. Redding, 11 M.J. 100 (C.M.A. 1981) (opinion of Cook, J.); See also R.C.M. 1204(a), Discussion (C.M.R. filing favored for judicial economy).

(2) CAAF, Rules of Practice and procedure, Rule 4(b)(1): The Court may, in its discretion, entertain original petitions for extraordinary relief . . ..  Absent good cause, no such petition shall be filed unless relief has first been sought in the appropriate Court of Criminal Appeals.  Original writs are rarely granted.

d. Considerations of time and subject matter.

2. Special rule for trial counsel.  Before filing an application for extraordinary relief on behalf of the government, government representatives should (will) coordinate with Appellate Government.

H. Procedure.

1. Petitioner has initial burden of persuasion to show jurisdiction and extraordinary circumstances.  The party seeking relief has an “extremely heavy burden.”  McKinney v. Jarvis, 46 M.J. 870, 873 (Army Ct. Crim. App. 1997; United States v. Mahoney, 36 M.J. 679, 685 (A.F.C.M.R. 1992).  The petitioner must show that the complained of actions were more than “gross error” and constitute a “judicial usurpation of power.”  San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996)

2. The “show cause” order shifts burden.

III. Victim Writs

A. Article 6b, UCMJ, was amended in 20015 and 2016, to state that if a victim of an offense under the UCMJ believes that a ruling by a military judge, or an Art. 32 preliminary hearing officer, violates the victim’s rights afforded by Military Rules of Evidence 412, 513, 514, and 615, or that orders a victim to submit to a deposition, the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rules of Evidence, or to quash the deposition order.  Article 6b is unique in that it provides victims a statutory right to petition for a Writ of Mandamus even before a case has been referred to a court-martial.  Although there is an express grant of jurisdiction under Article 6b for those rights covered under Article 6b, it is arguable that LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) affords victims the right to file a writ so long as they meet the requirements of the case, even if the claimed right falls outside the exact strictures of Art. 6b.

IV. Waiver and/or withdrawal of Appellate Review.  Article 61, UCMJ; R.C.M. 1110/R.C.M. 1115

A. The MJA 2016 will make some fairly substantial changes to waiver of appellate review.  The new rule will be R.C.M. 1115. Withdrawal will not change substantially with the MJA 2016.

1. What.  The new rule will continue to allow an accused to waive appellate review for any GCM, except one in which the approved sentence includes death.  It will expand the ability of an accused to waive appellate review in a special court-martial to situations not only where the approved sentence includes and BCD, but also where there is no punitive discharge but also confinement for more than 6 months.  This change to those cases eligible for waiver reflect the new jurisdictional limits for the CCAs under the MJA 2016. The SPCMs below the cited limits are not otherwise eligible for appellate review, so there is nothing to waive.

B. When.  Under the MJA 2016, the accused will be able to sign a waiver anytime after the entry of judgment.  Currently, the accused may sign a waiver of appellate review any time after the sentence is announced.  The waiver may be filed only within 10 days after the accused or defense counsel is served with a copy of the action under R.C.M. 1107(h).  On written application of the accused, the CA may extend this period for good cause, for not more than 30 days.  See R.C.M. 1110(f)(1).  The accused may file a withdrawal at any time before appellate review is completed.

C. Right to counsel. The right to consult with counsel will not change substantially for either waive or withdrawal. 

1. Waiver.

a) Counsel who represented the accused at the court­-martial.

b) Associate counsel.

c) Substitute counsel.

2. Withdrawal.

a) Appellate defense counsel.

b) Associate defense counsel.

c) Detailed counsel if no appellate defense counsel has been assigned.

d) Civilian counsel.

D. Procedure.  Under the MJA 2016, the waiver can either be filed with the CA OR with TJAG, reflecting the newly extended timeline for waiver. Once filed in substantial compliance with either the old or new rules, the waiver or withdrawal is irrevocable. It is important to note, however, that, under the MJA 2016, the accused CANNOT waive TJAG review (see R.C.M. 1201(a)(2)(A)).   

1. United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996).  May not validly waive appellate review, under Article 61, UCMJ, before CA takes initial action in a case, citing, inter alia, United States v. Hernandez, 33 M.J. 145 (C.M.A. 1991) (Article 61(a) permits such waiver “within 10 days after the action . . . is served on the accused or on defense counsel.”  R.C.M. 1110(f) must be read in this context.  Clearly the R.C.M. cannot supersede a statute, but careful reading of the R.C.M. reveals that it may be signed “at any time after the sentence is announced” but “must be filed within 10 days after” service of the action (emphasis added)).  Smith, 44 M.J. at 391-392.

2. United States v. Walker, 34 M.J. 317 (C.M.A. 1992).  Documents purporting to withdraw accused’s appeal request were invalid attempt to waive appellate review prior to CA’s action.

3. United States v. Smith, 34 M.J. 247 (C.M.A. 1992).  Waiver of appellate representation 58 days before action by CA was tantamount to waiver of appellate review; therefore, was premature and without effect.

4. Clay v. Woodmansee, 29 M.J. 663 (A.C.M.R. 1989).  Accused’s waiver of appellate review was null and void as it was the result of the government’s promise of clemency.



A. Cases automatically reviewed by a Court of Criminal Appeals (Article 66).

1. Cases in which the approved sentence includes death.

2. The MJA 2016 will change it from cases in which the approved sentence includes a punitive discharge or confinement for a year or more to cases in which the approved sentence includes a punitive discharge and confinement for 2 years or more.

B. “Quasi-automatic” reviewed cases by the Court of Criminal Appeals (Article 66)

1. This is entirely new under the MJA 2016.  There will be four, potentially five, additional methods for gaining access to the CCA.

a) Timely appeal from the accused with a sentence of more than 6 months, but less than 2 years and no punitive discharge.

b) Timely appeal from an accused where the Government previously appealed under Art. 62.

c) Timely appeal from the accused where TJAG has sent a case for review under Art. 56(d).  This appears confusing based on the below provision. The problem is use of the term “review” versus “appeal” to alternately refer to a Government right to access appellate review. It may be this provision in Art. 66 is duplicative with the provision in Art. 56, but using the term “review” versus “appeal” confuses matters.

d) Timely Government appeal under Art. 56(d). Although there is now an explicit statutory provision allowed the Government to appeal sentences under Art. 56(d), it would appear that this provision will be a nullity from the outset.  The Government appeal made sense as part of the MJRG’s larger proposal to adopt sentencing guidelines. However, without those guidelines, it is difficult to see how a court-martial might adjudge an “illegal sentence” (given the multiple safety valves for ensuring mandatory minimums are correctly adjudged) or how a court might determine that a sentence is “plainly unreasonable.”  Currently, there is caselaw which has developed around appellants making somewhat similar claims at the CCA, however, it is not often successful.  See Sentence Appropriateness Relief in the Courts of Criminal Appeals, 66 A.F. Law Rev. (2010).  Even if the Government were to prevail, the CCA cannot reassess the sentence (except to reduce it IAW Art. 66(f)(2)), so the only option is to order a rehearing, where the revised R.C.M. will allow for an increase, although there is no provision which would allow the appellate courts to essentially provide guidance in the form of some kind of new minimum “reasonable” sentence in the case.   

e) Timely appeal from accused to review TJAG under Art. 69(d)(1)(B). This is perhaps the most interesting new mechanism for appeal, appearing to address the problem identified by the dissent in United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015), notably, an entire class of “subjurisdictional” cases subject only to internal review. Now, an accused may appeal TJAG’s review, under certain limited circumstances.

C. Scope of CCA review:  both law and fact (except for cases appealed by an accused under the MJA’s new Art. 69, which will be limited to taking action with respect to “matters of law”)

1. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).  Courts of Military Review need not address in writing all assignments of error, so long as the written opinion notes that judges considered any assignments of error and found them to be without merit.

2. United States v. Quigley, 35 M.J. 345 (C.M.A. 1992).  Choice of whether to call appellate court’s attention to issue rests with counsel, although choice is subject to scrutiny for effective assistance of counsel in each case.

3. United States v. Gunter, 34 M.J. 181 (C.M.A. 1992).  Error for CMR to deny accused’s motion to submit handwritten matter for consideration by that court (detailed summary by appellate defense counsel not sufficient).

D. Power of Courts of Criminal Appeals (CCAs).  UCMJ, Article 66(c):

1. “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.”

2. United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018).  Holding that Art. 56(b) (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 mandatory minimum sentence for sentence appropriateness.

3. United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).  CAAF found error where CCA set aside and dismissed finding of guilty to the child pornography offense based on “unique circumstances.”  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. 

4. United States v. Cole, 31 M.J. 270 (C.M.A. 1990).  “Article 66(c)[‘s] . . . awesome, plenary, de novo power of review” grants CCAs the authority  to substitute their judgment for that of the MJ.  It also allows a “substitution of judgment” for that of the court members.

5. United States v. Claxton, 32 M.J. 159 (C.M.A. 1991).  A “carte blanche” to do justice.  J. Sullivan in dissent notes CCAs are still bound by the law.

6. United States v. Keith, 36 M.J. 518 (A.C.M.R. 1992).  In appropriate cases, the ACMR may fashion equitable and meaningful remedy regarding sentence.

7. United States v. Smith, 39 M.J. 448 (C.M.A. 1994).  Plenary, de novo power of CCA does not include finding facts regarding allegations of which fact finder has found accused not guilty.

8. United States v. Lewis, 38 M.J. 501 (A.C.M.R. 1993), aff’d, 42 M.J. 1 (C.A.A.F. 2005).  Appellate court has authority to investigate allegations of IAC, including authority to order submission of affidavits and a hearing before a MJ.

9. United States v. Joyner, 39 M.J. 965 (A.F.C.M.R. 1994).  In reviewing severity of sentence, appellate court’s duty is to determine whether accused’s approved sentence is correct in law and fact based on individualized consideration of nature and seriousness of offense and character of accused.  United States v. Smith, 56 M.J. 653 (A. Ct. Crim. App. 2001) (holding that nine-year sentence for escape from Disciplinary Barracks and related offenses not inappropriately severe even though co-accused and individual who initiated the scheme to escape only received three years).  See also United States v. Hundley, 56 M.J. 858 (N-M. Ct. Crim. App. 2002); United States v. Ransom, 56 M.J. 861 (A. Ct. Crim. App. 2002).

10. United States v. Ragard, 56 M.J. 852 (A. Ct. Crim. App. 2002).  Clemency power is not within the powers granted to appellate courts by Article 66, UCMJ.  Appellant argued that his medical condition (having AIDS) made his dismissal an inappropriately severe sentence because his dismissal would limit his access to medical care.  The Army court disagreed, noting that sentence appropriateness involves a judicial function of ensuring that the accused gets the punishment deserved while clemency involves “bestowing mercy.”

11. United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  Appellate court may reassess a sentence if it is convinced that the sentence would have been of at least a certain magnitude, even if there is no error.  If there is an error, such a reassessment must purge the prejudicial impact of the error.  If the error was of constitutional magnitude, the court must be persuaded beyond a reasonable doubt that its reassessment has rendered any error harmless.  If the appellate court cannot be certain that the prejudicial impact can be eliminated by reassessment and that the sentence would have been of a certain magnitude, it must order a rehearing on sentence.  See also United States v. Harris, 53 M.J. 86 (C.A.A.F. 2000) (noting that appellate courts must also make the same determination if a sentence has been reassessed by a convening authority).

12. United States v. Doss, 57 M.J. 182 (C.A.A.F. 2002).  Appellant convicted of assault consummated by a battery, assault with a dangerous weapon, and soliciting another to murder his wife.  At trial, the DC presented no evidence on appellant’s mental condition other than his unsworn statement.  On appeal, the NMCCA found appellant’s defense counsel ineffective during the sentencing portion of the trial by failing to present evidence of appellant’s mental condition.  The court reassessed the appellant’s sentence and reduced the period of confinement from eight to seven years.  On appeal, the CAAF found that the DC’s omissions could not be cured (i.e., rendered harmless beyond a reasonable doubt) by reassessing the sentence because it was impossible to determine what evidence a competent defense counsel would have presented.  The court, therefore, held that the lower court abused its discretion in reassessing the sentence instead of ordering a rehearing.

13. United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003).  Appellant convicted of, among other offenses, five drug distribution specifications and sentenced to a BCD, ten years confinement, total forfeitures, and reduction to E-1.  On appeal, the ACCA set aside two distribution specifications and ordered a rehearing on sentence.  On rehearing, the appellant was sentenced to a DD, six years confinement, and reduction to E-1.  The ACCA affirmed the sentence finding that under an objective standard, a reasonable person would not view the rehearing sentence as “in excess of or more severe than” the original sentence; therefore, Article 63, UCMJ, and R.C.M. 810(d)(1) were not violated.  The CAAF reversed as to sentence, finding that a DD is more severe than a BCD and no objective equivalence is available when comparing a punitive discharge with confinement.  The CAAF affirmed only so much of the sentence as provided for a BCD, six years confinement, and reduction to E-1.

14. United States v. Commander, 39 M.J. 972 (A.F.C.M.R. 1994).  Appellate courts may examine disparate sentences when there is direct correlation between each accused and their respective offenses, sentences are highly disparate, and there are no good and cogent reasons for differences in punishment.  See also United States v. Kelly, 40 M.J. 558 (N.M.C.M.R. 1994).

15. United States v. Pingree, 39 M.J. 884 (A.C.M.R. 1994) (inappropriately severe sentence reassessed, dismissal disapproved).  See also United States v. Hudson, 39 M.J. 958 (N.M.C.M.R. 1994) (court disapproved BCD); United States v. Triplett, 56 M.J. 875 (A. Ct. Crim. App. 2002) (court reduced accused period of confinement from fifteen years to ten years based on the five- and six-year sentences two co-accused received).

16. United States v. Dykes, 38 M.J. 270 (C.M.A. 1993).  Standard for ordering post-trial hearing on issue presented to appellate court:

a) Not required where no reasonable person could view opposing affidavits, in light of record of trial, and find the facts alleged by accused to support claim.

b) Required where substantial unresolved questions concerning accused’s claim.

17. United States v. Fagan, 58 M.J. 534 (A. Ct. Crim. App. 2003), rev’d, 59 M.J. 238 (C.A.A.F. 2004).  The lower court was correct in holding that United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997)[1] provides the proper analytical framework for dealing with a post-trial affidavit raising a claim of cruel and unusual punishment.  The lower court, however, erred in holding that it could grant relief at its level “in lieu of ordering a DuBay hearing (United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967)), to resolve the disputed factual issues raised by the appellant’s affidavit.  “The linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals’ fact-finding authority under Article 66(c) does not extend to deciding disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties.”  59 M.J. 238, 242 (C.A.A.F. 2004).  Finally, the lower court erred in finding a conflict, “where none exists” between Ginn and United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998).  59 M.J. at 243.  “The exercise of the ‘broad power’ referred to in Wheelus flowed from the existence of an acknowledged legal error or deficiency in the post-trial review process.  It is not a ‘broad power to moot claims of prejudice’ in the absence of acknowledged legal error or deficiency, nor is it a mechanism to ‘moot claims’ as an alternative to ascertaining whether a legal error or deficiency exists in the first place.”  59 M.J. at 244.

18. United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002).  Standard for handling post-trial discovery issues:

a) Has appellant met his threshold burden of demonstrating that some measure of appellate inquiry is warranted?  If no – stop.  If yes, then –

b) What method of review should be used (e.g., affidavits, interrogatories, fact-finding hearing, etc.)?

19. United States v. Hutchison, 57 M.J. 231 (C.A.A.F. 2002).  Sentence review limited to determining appropriateness of sentence. Consideration of whether civilian criminal prosecution was “appropriate” is an improper consideration for the CCA.

20. United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003).  Appellate courts (i.e., CCAs) cannot impose alternative relief on an unwilling appellant to rectify a mutual misunderstanding of a material term of a PTA.  Appellant must consent to the proposed relief or be afforded the opportunity to withdraw from the prior plea.  But see United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006).

21. United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003).  The lower court (AFCCA) erred, depriving the appellant of a proper Article 66(c) review limited to the record of trial, when it considered numerous exhibits for the truth of the matters asserted, “alter[ing] the evidentiary quality of the [exhibits]” when the military judge ruled otherwise and instructed the members that they were not to consider the cited evidence for the truth of the matters asserted.  Id. at 233.  “Article 66(c) limits the Courts of Criminal Appeals to a review of the facts, testimony, and evidence presented at trial, and precludes a Court of Criminal Appeals from considering ‘extra-record’ matters when making determinations of guilt, innocence, and sentence appropriateness (citation omitted).  Similarly, the Courts of Criminal Appeals are precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c).”  Id. at 232.     

22. United States v. Osuna, 58 M.J. 879 (C.G. Ct. Crim. App. 2003).  Appellate courts are limited, absent clearly erroneous findings or legal error, to the factual determinations made by prior panels of that court.  In appellant’s first appeal, the court affirmed the findings but remanded for a new review and action because there was no evidence that the CA considered the appellant’s clemency submissions or that he was ever advised to consider the defense’s written submissions.  C.J. Baum, in the first appeal, dissented re: findings on several offenses citing to a lack of factual sufficiency.  On appeal the second time, the appellant renewed his challenge to the findings.  The court, in an opinion authored by C.J. Baum, held “it would be inappropriate for us to readdress our previous factual determination, absent a legal error necessitating such action.”  Id. at 880.

23. United States v. Castillo, 59 M.J. 600 (N-M. Ct. Crim. App. 2003).  The appellant was convicted of unauthorized absence terminated by apprehension and sentenced to reduction to E-1, fifty-one days confinement, and a BCD.  On appeal [Castillo I], the appellant alleged that her sentence was inappropriately severe, an allegation that the court agreed with, setting aside the CA’s action and remanding with the following direction: 

The record will be returned to The Judge Advocate General for remand to the [CA], who may upon further consideration approve an adjudged sentence no greater than one including a discharge suspended under proper conditions.

Id. at 601 (quoting United States v. Castillo, No. 200101326, 2002 WL 1791911 (N-M. Ct. Crim. App. Jul. 31, 2002) (unpublished)).  Upon remand, the SJAR erroneously advised the CA that the appellate court “recommended” that the punitive discharge be set aside.  The defense counsel disagreed with the SJAR noting that the guidance from the NMCCA was not a recommendation.  The CA, following the SJA’s advice, again approved a punitive discharge.  Held:  the CA’s decision to disregard the court’s guidance was “a clear and obvious error,” a decision based on advice that was similarly “clearly erroneous” and “misguided.”  Id.  Finally, the court advised that “[p]arties practicing before trial and appellate courts have only three options when faced with [their] rulings [:  comply with the decision, request reconsideration, or appeal to the next higher authority to include certification of an issue by the Judge Advocate General].”  Id.  In exercising its sentence appropriateness authority under Article 66(c), UCMJ, the court approved only so much of the sentence as provided for reduction to E-1 and 51 days confinement, and disapproved the BCD.

E. Cases reviewed by TJAG.  As discussed, Art. 69 will undergo fairly major revisions as part of the new MJA 2016, thereby allowing an accused to petition the CCA for review of TJAG’s review.  In addition, the MJA 2016 will amend Art. 65 to move the requirement to conduct review of cases not otherwise subject to review under Art. 66 to Art. 65.  Article 64 covers review of summary courts-martial.

VI. Review by the Court of Appeals for the Armed Forces: Articles 67 & 142, UCMJ; R.C.M. 1204

A. The MJA 2016 will not make major changes to the CAAF. It will require notification to other service TJAGs and the SJA to the Commandant of the Marine Corps prior to certifying a case for review. It will also amend language about the scope of its review to reflect the other changes to post-trial processing procedures.

B. Cases reviewed.

1. All cases in which the sentence as approved by a Court of Criminal Appeals extends to death.

2. All cases reviewed by a Court of Criminal Appeals which TJAG orders sent to the CAAF for review.

3. All cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the CAAF has granted a review.

4. Extraordinary writ authority.

C. Ortiz v. United States, 138 S. Ct. 2165 (2018).  Professor Aditya Bamzai of UVA Law School filed an amicus brief in support of neither party arguing that the Supreme Court lacked jurisdiction to review cases from the CAAF.  Though called a "court" by statute, Prof. Bamzai argued that the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. According to Prof. Bamzai, Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that the Supreme Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The Supreme Court disagreed and rejected the argument that the CAAF was not a “court” and not subject to review by the Supreme Court, although at least 2 Justices dissented from this conclusion.

D. United States v. Schoof, 37 M.J. 96 (C.M.A. 1993).  Equal protection and due process challenge to TJAG’s authority to certify issues under Article 67.

E. United States v. Jones, 39 M.J. 315 (C.M.A. 1994).  Power of the CAAF usually does not include making sentence-appropriateness determinations; that is the province of the Courts of Criminal Appeals.

F. United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).  Article 67(b), UCMJ, provides that the appellant has sixty days from the date of notification of a Court of Criminal Appeals decision to petition the Court of Appeals for the Armed Forces for review.  The appellant in this case filed his petition for review approximately 73 days after notification of the NMCCA decision.  The United States Supreme Court decided Bowles v. Russell, 551 U.S. 205 (2007), shortly before the NMCCA decision in this case.  Bowles concluded that statutory periods within which an accused may file a petition for review are jurisdictional.  The CAAF holds that Article 67(b) is jurisdictional.  Appeal was outside the authority of the CAAF to grant.

G. Abatement Ab Initio.  United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003).  Appeal to the CAAF under Article 67(a)(3), UCMJ, is a matter of discretion and NOT a matter of right.  As such, the CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 67(a)(3) appellate review, reversing a policy followed by the court since 1953.  Abatement ab initio is a “matter of policy in Federal courts,” not mandated by the Constitution or statute, and is not part of the Rules of Practice and Procedures for the CAAF.  By reversing its prior 50-year policy, the court is now in line with the rule established by the Supreme Court in Dove v. United States, 423 U.S. 325 (1976).  To the extent that United States v. Kuskie, 11 M.J. 253 (C.M.A. 1981) and Berry v. The Judges of the United States Army Court of Military Review, 37 M.J. 158 (C.M.A. 1983) are inconsistent with this decision, they were overruled.  See also United States v. Ribaudo, 62 M.J. 286 (C.A.A.F. 2006).

H. Decisions of the Court of Appeals for Armed Forces may be reviewed by the Supreme Court by writ of certiorari. However, the Supreme Court may not review by writ of certiorari any action of CAAF in refusing to grant a petition for review.

VII. Finality of Courts-Martial: R.C.M. 1209

A. When is a conviction final?

1. Review is completed under R.C.M. 1201(a) (the MJA 2016 amended Art. 65)

2. When review is completed by a Court of Criminal Appeals and ―

a) The accused does not file a timely petition for review by CAAF and the case is not otherwise under review by that court; or

b) A petition for review is denied or otherwise rejected by CAAF; or

c) Review is completed in accordance with the judgment of CAAF and:

(1) A petition for a writ of certiorari is not filed within applicable time limits;

(2) A petition for a writ of certiorari is denied or otherwise rejected by the Supreme Court; or,

(3) Review is otherwise completed in accordance with the judgment of the Supreme Court.

3. For summary courts, a JA completes review under R.C.M. 1307(d) and no further action in required under R.C.M. 1307(e).

B. United States v. Jackson, 38 M.J. 744 (A.C.M.R. 1993).  Abatement after death of appellant, before appeal to Court of Military Appeals.  See also United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002) (findings and sentence set aside based on accused’s death prior to final action – motions to vacate and attach granted).  But see United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) (the CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 67(a)(3) appellate review, reversing a policy followed by the court since 1953).

C. Finality and execution of sentences.

1. A DD or BCD may be ordered executed only after a final judgment within the meaning of R.C.M. 1209.

2. Dismissal may be approved and ordered executed only by the Secretary concerned.

3. Only President may order execution of death penalty. R.C.M. 1207.

VIII. Petition for a New Trial: Article 73, UCMJ; R.C.M. 1210

A. Within 3 years of initial action by the CA. Requirements (this is a MJA 2016 amendment to change the time from 2 to 3 years):

1. Evidence discovered after trial or fraud on the court.

2. Evidence not such that it would have been discovered by petitioner at time of trial in exercise of due diligence.

3. Newly discovered evidence, if considered by a court-martial in light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

B. Approval authority:  OTJAG, CCA, or CAAF.

C. Concern for avoiding manifest injustice is adequately addressed in three requirements in R.C.M. 1210(f).  United States v. Williams, 37 M.J. 352 (C.M.A. 1993).

D. United States v. Hanson, 39 M.J 610 (A.C.M.R. 1994).  Petition for new trial based on newly discovered evidence.

E. United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011).  Petition for a new trial based upon misconduct by USACIL serology analyst.  The CAAF cited to the three requirements above and held that this evidence would not have resulted in a substantially more favorable result for the appellant.  Several of the judges would also have found this request for a new trial time barred under Article 73, UCMJ, which requires a petition to be filed within two years of CA action.  In this case, the request came in four years after the two year window (due to the late discovery of the serology analyst misconduct).


[1]  In United States v. Ginn, the CAAF established six principles for dealing with allegations of error raised for the first time on appeal in a post-trial affidavit:        

a. First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in the appellant’s favor, the claim may be rejected on that basis.

b. Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory observations, the claim may be rejected on that basis.

c. Third, if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers and affidavit that expressly agrees with those facts, the Court can proceed to decide the legal issues on the basis of those uncontroverted facts.

d. Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a whole “compellingly demonstrate” the improbability of those facts, the Court may discount those factual assertions and decide the legal issue.

e. Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record (including the admissions made in the plea inquiry at trial and appellant’s expression of satisfaction with counsel at trial) unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal.

f. Sixth, the Court of Criminal Appeals is required to order a factfinding hearing only when the above-stated circumstances are not met.  In such circumstances the court must remand the case to the trial level for a DuBay proceeding.

Fagan, 58 M.J. at 537 (emphasis in original). 

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