The Coast Guard Court of Criminal Appeals explored CAAF’s reasoning in Nerad in its newest published opinion, United States v. Bond. In Bond, an accused faced a general court-martial for rape along with three unrelated offenses that arose from an alcohol-related liberty incident during a port call in Barbados. During the port call the accused had gotten quite sideways on a public street and had to be escorted back to the cutter by two female shipmates. While being escorted, the accused allegedly grabbed at one escort’s crotch and made sexual comments to them. The accused went to mast for the Barbados incident.

The appellant had been accused of rape two weeks before the Barbados incident, and all of the charges—including the ones for which the accused had been punished at mast—were referred to a general court-martial. The accused unsuccessfully moved to dismiss the Barbados charges for former jeopardy. The most serious Barbados charge was attempted indecent assault, and the military judge found that they were not minor under RCM 907.

At trial, the accused was acquitted of rape and attempted indecent assault, but convicted of assault consummated by a battery, drunkenness, and indecent language. Members awarded reduction to E-1 and a BCD.

In a pre-Nerad unpublished opinion, the Coast Guard court set aside the findings and sentence under Article 66, holding that preserving GCM convictions for the remaining minor offenses that had already been the subject of NJP was neither “necessary [n]or attractive.” Nerad was decided shortly afterwards and the government asked for reconsideration. The Coast Guard court withdrew its first opinion but relied on Nerad to reach the same result. The court declined to find that the military judge erred by allowing the Barbados charges to proceed to trial, but found that once the verdicts left only minor offenses on the table, it was “unreasonable” to maintain the court-martial convictions for previously punished conduct. The court compared its action to the Nerad-approved determination by a CCA that a finding should be set aside as an unreasonable multiplication of charges, even though the charge might be factually and legally correct. The Coast Guard court asserted that this is a legal standard as opposed to an equitable one, and that it has the authority to set aside the convictions under Article 66, UCMJ. 

Disclosure: I was IMC in this case.

18 Responses to “Coast Guard CCA applies Nerad, sets aside findings”

  1. Michael Lowrey says:

    Thanks for posting the summary. One quick point/question: the Coast Guard CCA site lists this case as an unpublished opinion.

  2. John O'Connor says:

    Clemency.

  3. Marcus Fulton says:

    M.L.:
    Might you be looking at the first Bond opinion? I think the most recent one will be published; at least it has MJ next to it. I took that to mean they were going to publish it.

    J O’C: That was my very first thought, but after re-reading it, I think they’re on to something. When Nerad first came out I couldn’t think of another situation other than UMC where a CCA could use a legal standard to disapprove a finding that was sufficient in fact and law. I think this may be one other very unusual circumstance where that rationale applies.

  4. John O'Connor says:

    Still sounds like prosecutorial discretion or clemency to me.

    UMC is different because the accused ends up with a conviction. I can’t see how Congress decides to criminalize something, it’s constitutional to criminalize it, the accused committed the offense, the convening authority, seeing what was left at the end of trial decides to approve the finding of guilty, and then three judges sitting in D.C. review the cold record and have the legal power to decide they know best about whether an accused who actually committed a criminal offense ought to have a conviction for it.

  5. Marcus Fulton says:

    But isn’t that exactly what does happen when a CCA sets aside a specification for UMC? It shouldn’t matter that an appellant is left with at least one conviction in the UMC context but isn’t in this one. Article 66 is still being applied in the same way; to set aside an approved factually and legally sufficient conviction.

  6. Anonymous says:

    This is pure appellate clemency. According to the summary, the CCA demonstrated its true intent by originally declaring the conviction as neither “necessary nor attractive” . . . which is clearly based upon equity and not legal considerations. The CCA could have based their analysis on UMC from the beginning, but they didn’t. It is disingeuous in the extreme to later go back after Nerad is published and claim, “we really meant to say UMC.” The CCA had its result in mind from the beginning (they didn’t like the equity) and then repackaged it in order to survive CAAF scrutiny. What a paternalistic decision. Hope the CG certifies this to CAAF; the CCA should be held accountable for this one.

  7. Marcus Fulton says:

    The question isn’t really if it was UMC. The question is whether CCA can, using a legal standard, disapprove a finding that if finds factually and legally sufficient. UMC is a CAAF-approved example of an instance where a CCA can do that. The question in Bond is whether being left with minor, previously punished LIO’s after findings is another such situation. No one is suggesting that it’s actually UMC.

  8. Anonymous says:

    I respectfully suggest the question is far more basic than that. How can a CCA previously commit itself to an equitable (versus legal) analysis and justification for their decision to set aside a conviction and then only after their superior court said a CCA cannot do so, the CCA chooses a novel theory of UMC? If the CCA said UMC (or some other legal theory) from the beginning, there would be no problem. But, they didn’t, and with respect, it is intellectually dishonest for the CCA to later claim they really meant UMC when in fact they clearly meant and acted in equity. Words matter, and the CCA committed itself to an equitable course of action that cannot be disregarded simply because it was later determined to be an unlawful exercise of Art 66 by the superior court. That is just not right, and the CCA should be held to answer for it. CG should certify.

  9. Timothy Davis says:

    Too many TC’s draw charges like a fishing trip, why not simply charge what is there vice the hit or miss theory?

    The reason, why the entire systems seems like a dog and pony show at times as defendants continues to be overwhelmingly at a disadvantage.

    Discretion remains the better remains the better part of valor, I always viewed a prosecutor who wanted to run up the charges as weak at best.

    There is no question this defendant is guilty of at the least assault instead because of the abject ignorance of so many TC’S this guy gets to walk away without a scratch!

  10. Christopher Mathews says:

    Anon 1313, how likely do you think it is that CAAF will cast the issue as you suggest?

    It seems to me you’re in effect accusing the CCA of lying about what it’s done. I think CAAF will limit itself to addressing whether what was done was done correctly, not why it was done.

  11. Anonymous says:

    Under the unique circumstances of this case where the CCA erroneously chose an unlawful course in equity as their true and original intent, CAAF (and all of us) should view with suspicion a newly-discovered claim of UMC or some other legal basis. To permit a CCA to do this is to countenance results-oriented adjudication, and we should expect better from our appellate courts.

  12. Christopher Mathews says:

    That the court may have chosen to act in equity “as their true and original intent” does not logically preclude them from finding that a different theory compels the same result, does it?

    CAAF may very well disagree with the service court, but I don’t think they’re going to find that the CCA is lying about how it got to its result.

  13. Anonymous says:

    So, you are arguing that even though they were told to rehear the case by the CAAF that the CCA is somehow bound by their prior ruling and cannot look to any other law and so must say, ok CAAF, you got us, conviction affirmed.

    There can be more than one theory for a legal opinion. That their original theory was invalid says nothing about the validity of subsequent theories.

    Those will be decided on their own merits, as this one will be.

  14. Bill C says:

    Unfortunately, this is an example of the CCA doing what the TC/SJA/CA did not do, and should have. They could have disapproved the findings, and given him an LOR or moved for Ad Sep. Thus, the guy has served his punishment and the CG is assured he doesn’t get promoted.

  15. Anonymous says:

    +1 for Bill C.

  16. Scott Brenley says:

    my sentiments indeed!Bill C

  17. John O'Connor says:

    That still sounds like appellate clemency. I haven’t even given thought to whether the CA rally should have disapproved legally sufficient findings because, in my mind, that’s not a relevant question.

    Judges are not given the task of running the Army, err, Coast Guard.

  18. Anonymous says:

    Sounds like a confession of appellate clemency, which is exactly what happened in this case. CCAs don’t possess such authority.