The Judge Advocate General of the Air Force certified the following issue statement in United States v. Burns, No. 14-5004/AF:
Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed a miscarriage of justice by reaching its erroneous factual insufficiency conclusion and by relying upon facts not established in the record in finding Appellant’s conviction not factually sufficient.
When that certification appeared on CAAF’s docket I wrote a post titled: Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused). Of the facts of the case I observed:
What could prompt such an emotional issue? Appellee got into an argument, and then he fired a single shot from his pistol into the air near his apartment complex. For this, Appellee was convicted of one specification of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life, in violation of Article 134. He was sentenced to confinement for 35 days, reduction to E-1, and a bad-conduct discharge. On review, the majority of a three-judge panel of the AFCCA determined that:
the Government failed to demonstrate that the appellant’s act of firing a single shot into the air was unsafe to human life in general. The Government’s evidence on this element rested almost entirely upon one witness’s testimony about the act itself along with an aerial photograph depicting that the appellant fired his shot in the midst of a multi-building apartment complex. Under the facts of this case, this is an insufficient basis to conclude that human life was endangered by the appellant’s actions.
United States v. Burns, No. S32084, slip op. at 4 (A.F.Ct.Crim.App. Dec. 18, 2013) (link to slip op.). The court found the conviction factually insufficient but it affirmed a conviction of the lesser-included offense of discharging a firearm through negligence. That offense does not carry with it the possibility of a punitive discharge. So, the CCA affirmed all of the sentence except the bad-conduct discharge.
Is this the miscarriage of justice warranting such a breathless certification to CAAF?
In a short order issued yesterday, CAAF answers my question in the negative, rejects the issue certified by TJAF, and affirms the decision of the AFCCA:
No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 13, 2014), Appellee’s motion to supplement the record, Appellant’s motion to supplement the record, and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding that Appellee’s conviction of the greater offense of willful and wrongful discharge of a firearm under circumstances such as to endanger human life was factually insufficient and in affirming a finding of guilt as to the lesser included offense of negligent discharge of a firearm. Accordingly, it is ordered that the motions to supplement the record are granted, the certified issue is answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.