CAAF’s case law establishes that a waiver of appellate counsel isn’t effective unless it’s filed after the CA acts.  United States v. Smith, 34 M.J. 247, 249 (C.M.A.1992).  In United States v. Xu (pronounced “Shoe”), a waiver of appellate counsel, but not appellate review, was filed long before the CA acted.  The Air Force Court nevertheless gave it legal effect and proceeded to affirm the findings and sentence in the absence of any legal representation for Xu.  United States v. Xu, No. ACM 37722 (A.F. Ct. Crim. App. Dec. 7, 2010) (per curiam). 

After AFCCA affirmed his conviction and sentence, Xu obtained an appellate defense counsel, who filed a CAAF petition and supplement on his behalf.  CAAF granted Xu’s petition today and summarily reversed.  United States v. Xu, __ M.J. __, No. 11-0320/AF (C.A.A.F. May 25, 2011).  CAAF held that “Appellant’s waiver of appellate counsel prior to the convening authority’s action was premature.” 

Demonstrating the value of having counsel, CAAF also agreed with Xu’s counsel that “the convening authority failed to appropriately credit Appellant for prior punishment under Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 815 (2006), for an offense also charged as part of Additional Charge II.”  AFCCA didn’t notice that error when it reviewed the case without the benefit of counsel.  CAAF set aside the CA’s action and remanded the case for a new post-trial review and action, followed by a new Article 66 appeal to AFCCA.

This outcome confirms CAAF’s wisdom in holding that Article 66 review is no substitute for repreentation by an appellate defense counsel.  As CAAF observed in United States v. May:

Although Courts of Criminal Appeals have a broad mandate to review the record unconstrained by an appellant’s assignments of error, that broad mandate does not reduce the importance of adequate representation.  As we said in United States v. Ortiz, 24 MJ 323, 325 (CMA 1987), independent review is not the same as competent appellate representation.  An appellant who is denied counsel is forced to proceed “without a champion on appeal.”  Douglas v. California, 372 U.S. 353, 356 (1963). Denial of appellate counsel is presumptively prejudicial.  Penson v. Ohio, 488 U.S. 75, 88 (1988).

47 M.J. 478, 481 (C.A.A.F. 1998).

7 Responses to “CAAF grant and remand”

  1. tsam says:

    So an affirmative waiver by the appellant before action is no longer good enough? How is the CCA supposed to know this guy really wanted appellant counsel even though he said he didn’t? Absent a showing that he was somehow coerced into waiving appellate counsel, it sounds like he made a decision he should live with. CAAF is becoming more and more paternalistic in every decision.

  2. Dwight Sullivan says:

    It’s not that it’s “no longer good enough” — a pre-CA’s action waiver of appellate defense counsel has been invalid since 1991. United States v. Avery, 34 M.J. 160 (1991).

  3. Cube says:

    An accused may waive the most important of protections, including those guaranteed by the constitution. In my opinion, setting clear parameters for exercising such waivers is advisable. And so long as appellant Xu did not use his waiver to procure clemency (e.g., I will waive appellate review in exchange for confinement relief), then there is no real issue with CAAF’s decision. However, what if appellant Xu procured clemency through an unenforceable, and perhaps bad-faith, waiver; should he then be entitled to both the clemency and the purpotedly waived right?

  4. Dwight Sullivan says:


    Any such deal would probably be unenforceable. See R.C.M. 705(c)(1)(B); United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007).

    But in any event, the CA approved the sentence as adjudged in Xu.

  5. John O'Connor says:

    I swear I am not sock-puppeting as Cube.

  6. Stewie says:

    In such a scenario, a new SJAR and action would be required, and then would the CG be required to give the same clemency given before? If no, that solves your concern Cube.

  7. David Bargatze says:

    I wonder if it was an affirmative waiver or just an election to not request appellate counsel. It’s easy to do the latter, but not the former, with a standard Air Force form that is usually done immediately after trial. Besides, if you’re going to go through the effort of making a special waiver of appellate counsel, why not just waive appellate review?

    If it was just an election to not request appellate counsel, then he should have had appellate counsel anyway. Under Article 70(c), a request is just one way to get appellate counsel. There’s an independent requirement for appellate defense counsel in cases in which there is appellate government counsel, which the AFCCA opinion indicates there was in this case.

    Of course, then-Capt Sullivan probably would have been all over this pre-action appellate rights waiver issue. U.S. v. Hernandez, 33 M.J. 145 (C.M.A. 1991).