CAAF heard oral argument in United States v. Humphries, No. 10-5004/AF, on February 13, 2012. Humphries is a unique case with some history. Senior Airman (E-4) Humphries was convicted in 2009 by a panel with enlisted members of sodomy and adultery in violation of Articles 125 and 134. He was sentenced to reduction to the lowest enlisted grade and a bad-conduct discharge. The convening authority approved the sentence, but in 2010 the AFCAA, after finding no prejudicial error,  determined that Humphries “deserves punishment but given the consensual nature of his crimes, an unsuspended punitive discharge is inappropriately severe.” The AFCCA then set-aside the convening authority’s action and returned the case for reconsideration by the CA with instructions that he approve a sentence no greater than a suspended bad-conduct discharge and a reduction to E-1. Additionally, in its action, the CCA (despite determining that the findings are correct in law and fact) expressly declined to affirm the findings.

The government, unsurprisingly, requested en banc reconsideration, which the CCA denied. The government then sought and obtained certification to CAAF on the following question:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

CAAF heard oral argument in January 2011, but in February 2011 it returned the case to the AFCCA because the lower court “acted on the sentence without acting on the findings. This has resulted in having a case before us for review that does not have a complete decision on all findings and the sentence by the Court of Criminal Appeals as required by Article 67(c).”

In August 2011 the AFCCA doubled-down, issuing a decision affirming the findings as correct in law and fact and again setting-aside the CA’s action with the same appropriateness-based limit on the sentence on remand. The Judge Advocate General of the Air Force then re-certified the above-specified issue.

Perhaps not believing this case to be complicated enough at this point, the defense (led by our own Colonel Sullivan) petitioned for a cross-appeal, and CAAF granted review and ordered briefs on a second issue:

Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.

This grant came in mid-December, at about the same time as CAAF granted the second round of Fosler-trailers (for which a witty characterization is still pending).

So, going into the oral argument last week, the government was the appellant on the certified issue, and was the cross-appellee on the granted issue. To keep things simpler, the government will be the “government,” and Humphries the “appellee” from here on.

The facts of the case are sadly familiar for an adultery prosecution. The appellee, who was married, was the neighbor of the wife of a deployed airman who was having difficulty coping with her husband’s deployment. In February 2005 the appellee went to his neighbor’s house where, after she refused multiple advances, he eventually engaged in sexual intercourse and oral and anal sodomy with her while her children were in the next room. The appellee was subsequently charged with two specifications of rape, one specification of forcible sodomy, two specifications of adultery, and two specifications of wrongfully communicating a threat. He was convicted of one specification of adultery, and the lesser-included offense of consensual sodomy, and acquitted of the other offenses.

In the briefs, the government and the appellee tackle the specified issue as a question of the proper exercise and deference due to the broad powers granted to a Court of Criminal Appeals under Article 66, UCMJ. The appellee’s position is that it is inappropriate for CAAF to intrude upon the sentence-appropriateness powers of a CCA, while the government frames the CCA’s action as an abuse of discretion given the facts of the case.

On the granted issue, the government distinguishes this case from Fosler based on the failure of the appellee to object, and further (in an outstanding analysis of the law behind the issue of prejudice in these post-Fosler cases) argues that there is no prejudice to a substantial right of the appellee on which to base relief. The appellee argues that the specification must be reviewed de novo, that it is thus necessarily defective, and that the prejudice is found in the fact that the appellee was convicted of a legally deficient specification (i.e., an offense of which he was not charged). This issue was not discussed during the oral argument, but will certainly get its time among the many other post-Fosler grants.

Oral argument began with the Government’s assertion (noted immediately by Judge Stucky as an avenue for a simple resolution of the case) that the CCA engaged in “unauthorized appellate clemency in violation of Article 60.” This led to extensive discussion, led by Chief Judge Baker, of what standard of review applies to the court’s determination (de novo for a violation of Article 60, abuse of discretion for determination of sentence appropriateness; though the government sees the issues as intertwined). Judge Ryan then joined in this line of questioning, stating that it is a “very fine line” between asking CAAF to rightfully ensure that the lower courts apply appropriate principles of law, and asking it to wrongfully substitute its own determination of whether the sentence is appropriate or not.

The government’s counsel argued that the CCA chose to explain their deliberative process in determining the appropriateness of the sentence, and that “the only fact that pushed them over the edge to an inappropriately severe sentence was the consensual nature of his consensual crimes. They argued, in their mind the elements of the crime somehow mitigate the crime itself, and that just doesn’t make sense.” Argument audio at 6:50.

Further discussion ensued, leading the government to state that had the CCA not explained its reasoning, which it wasn’t required to do, then there would be no basis for the government to challenge its sentence appropriateness determination. This led Chief Judge Baker to ask (at 9:40), “do you want to win? I mean do you really want to win? If you win on that, isn’t the message just determine sentence appropriateness with silent opinions? Isn’t the system better served by a more open process?” The government counsel couldn’t argue with this, but he also restated that there is no legal requirement for the CCA to explain its reasoning.

The government’s argument ended with a long discussion of, essentially, Chief Judge Everett’s concurring opinion in United States v. Clark, 16 M.J. 239 (C.M.A. 1983),  in which he wrote that while an appellate court may not suspend a discharge, it could remand the case to the convening authority with instructions regarding the maximum appropriate sentence – exactly the action taken by the AFCCA in this case. The government, in its brief and at argument, argued for CAAF to finally reject this proposition.

The appellee’s argument began with bifurcation of the two “decisional” issues: (1) should CAAF disturb the CCA’s determination that the sentence was inappropriately severe, and (2) may a CCA remand a case to a convening authority with guidance on the sentence to be approved.

Perhaps picking up where the government’s argument left off, Chief Judge Baker asked if a CCA’s determination of appropriateness is subject to review by CAAF. The appellee’s counsel argued, after disclaiming that none of this is necessary to the determination of this case, that CAAF may only act on a sentence where a CCA rejects a sentence appropriateness claim (i.e., only where it approves the sentence); if the CCA disapproves a portion of the sentence, CAAF cannot act on the sentence and the CCA’s action is “remedy-less because it’s insulated from review.”  This limitation is in Article 67(c), which provides that: “In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the … sentence as … affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” So, as the argument went, a CCA could consider astrology charts in making a sentence appropriateness determination and CAAF could find this to be error, but could not reinstate a sentence set-aside as inappropriately severe (because it was not set-aside as incorrect in law).

Senior Judge Effron then returned to the question of what the CCA can do when it returns a case to a convening authority under circumstances such as these. The appellant’s counsel argued that there are, essentially, no limits to what could happen in a “dialogue between the CCA and the convening authority” regarding the maximum appropriate sentence. But Judge Stucky called this “cold comfort for the CA.” Argument audio at 35:40. The AFCCA did not simply eliminate the disproportionate aspects of the sentence, it seems to try to force the CA to do what it wants him to do. But the appellee’s counsel argued that the CCA’s action here (remanding with instructions) results in an expansion of the CA’s authority rather than a limitation. In a case like this, the CCA’s options are to outright disapprove the punitive discharge, or to return it for (at least) suspension, and possibly some other disposition, such as commutation into a different form of punishment. The options to suspend or commute are opportunities, and are more deferential to the CA than outright disapproval.

Finally, the appellant’s counsel argued that if the court does not approve the AFCCA’s action returning the case to the CA, then it should simply end the case by disapproving the BCD, consistent with the CCA’s appropriateness determination.

On rebuttal, the government began by taking “great exception with the word ‘opportunity’ twice mentioned by defense counsel” (regarding the opportunity for a dialogue between the CA and the CCA, and the opportunity for the CA to take some other action). Argument audio at 39:45. The government agreed that the CCA had the authority to disapprove the BCD as inappropriate, and that it should have done so if that is what is warranted in this case.

In summation, the government’s counsel stated:

The United States means no disrespect to Judge Everett or the CCA, but they were both absolutely mistaken when they violated Article 60. In reviewing the caselaw on CCAs standard under Article 66, Judge Gierke’s words in the unanimous Baier opinion from this court in 2005 are apt here: “the lower court’s opinion quotes an incorrect standard for determining sentence appropriateness. In using that language however, the lower court cited a 19-year-old summary disposition of this court that was marred by a mistaken and misleading citation. That mistake is a weed in the garden of our jurisprudence. We will now pull it up by the roots.” The United States respectfully asserts that the concurring opinion in Clark, footnote 4 in Healy, and the CCA decision, simply cannot stand and must be reversed. They must be pulled.

Case Links:
AFCCA’s first opinion
AFCCA’s second opinion
Appellant’s (government) brief
Appellee’s brief
Cross-appellant’s brief (Fosler issue)
Cross-appellee’s (government) brief (Fosler issue)
Oral argument audio
Argument recap

15 Responses to “Argument Recap: United States v. Humphries, No. 10-5004/AF”

  1. Socrates says:

    OK, dumb question, but since I haven’t seen it in terms of judicial relief: what is a “suspended” bad-conduct discharge?  What is the contingency or term of the suspension, if I’m understanding its use here correctly?

  2. Mike "No Man" Navarre says:

    Socrates–See RCM 1108 AND 1109. Other than being an administrative hassle for CAs, typically the suspended discharge, or other suspended sentence, is used for clemency with the hook that if you f-up again and burn me for being nice your a#* goes back to jail. As for administration, from the small sample size I have seen, CAs usually screw up administering suspended sentences, in particular the vacation hearings–they are no holiday.

  3. Cap'n Crunch says:

    Did anyone (think to) litigate the Marcum/Lawrence issues in this case?  Consensual sodomy seems well within the perview of Marcum.  And I’d think the adultery likewise has a connection to protected conduct under Marcum/Lawrence.

  4. k fischer says:


    Read US v. Schap, 44 M.J. 512 (A.C.C.A. 1996), then give me your opinion whether a Soldier sleeping with another deployed Soldier’s spouse is private conduct that should be protected under Lawrence/Marcum.  The reason I never Jody’d another Servicemember’s spouse or (knowingly) girlfriend is not because of Article 134.  It was because you never know if the girl’s spouse will be like Stephen Schap. 

    I think that sodomy would violate the military prong of Marcum.  I do think that a punitive discharge is a little harsh.  Sounds like the panel had residual doubt about the rape acquittal.

  5. PhilCave says:

    And for those who may not be aware, Schap presented his wife’s paramour’s severed head in a Head bowling ball bag.  But compare with the treatment of AF Lt kelly Flinn who was cavorting with the husband of an enlisted woman.

  6. soonergrunt says:

    I was in Germany when Schap lost his head and took his buddy’s.  It got extensive coverage in Stars and Stripes.

  7. stewie says:

    Agreed, there is (or shouldn’t be) Marcum protection for “Jody-ing” your deployed comrade’s spouse. Definite military nexus to prejudice to good order and discipline.

  8. stewie says:

    isn’t, not is.

  9. Charlie Gittins says:

    I continue to question why the military should be concerned with consensual sexual activity of its members.  Yeah, it may be aggravating to the spouse when the other spouse steps out, but that is life.  The military should not be prosecuting morality — the homo rules show that it is a no win proposition and they have already folded on homosexual sodomy.  So, why so much concern about who is doing heterosexual consensual sex outside marriage if we don’t prosecute consensual sodomy that is committed every time a homo couple has sex?   If it is not actually fraternization – i.e in the direct chain of command, who cares?  Really?  Just sayin.

  10. stewie says:

    I have no idea how to respond to that, so I’m just going to say that I agree that UNLESS there is a direct connection to the military/good order and discipline, we should never prosecute consensual acts of any kind straight or “homo” between adults (including threesomes, adultery, etc).
    Now, at least for adultery, the problem isn’t the law, which actually requires a link to PGOD or service discrediting (which I can’t see how that prong is violated in a society where it’s no longer a crime anywhere and folks are currently running for President who’ve violated it)…
    The problem is that commanders and some JAGs give short shrift to that requirement when they toss out career killing letters of reprimand for any and all adultery.

  11. Tami says:

    Didn’t Scahap also deliver his wife’s lover’s head to her while she was in the hospital?

    I really don’t have any problems with how AFCCA handled this.  They thought a BCD was too severe, but if they disapproved it, then the only punishment is reduction to E-1, and apparently AFCCA felt that was too lenient.  So sending it back to the CA with a limit gives him the chance to commute the discharge to something less severe, like confinement or forfeitures, maybe both.  The really interesting thing will be if CAAF busts the adultery charge.  That will change the “landscape” of max punishment available.

  12. PhilCave says:

    Tami, yes, after she had delivered her “ex” boyfriends baby I believe.

  13. k fischer says:


    I believe that she miscarried her lovers’ child, as she was only 4 months along. 

    The repeated reference to Mrs. Schap’s ‘lover’ throughout the opinion reminded me of the SNL skit with Will Ferrell and Rachel Dratch playing the middle aged college professor couple who repeatedly talk about their sexual escapades using the phrase ‘my lover.’  (Well, at this point during the soak, my lov-ah and I usually crave spiced meats.)

    What would have been icing on the case would be if Schap sang David Lee Roth’s version of “Just a Gigilo” and danced around while holding the severed head of Mrs. Schap’s lover.  

  14. soonergrunt says:

    Yes, he did.  If memory serves, he killed SPC Glover while he (SPC Glover) was on a pay phone at the airfield actually talking to Diane Schap.
    A good synopsys can be found at

  15. anonymous air force senior defense counsel with initials nm says:

    US v Schap aside, is there still prejudice to good order and discipline if the husband consents to the affair?