In United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), CAAF reversed a conviction for an adultery specification that failed to state a terminal element, even though the accused did not challenge that deficiency at trial, on the basis that “there was nothing during its case-in-chief that reasonably placed Appellee on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated.” 71 M.J. at 217.

While the terminal element issue made Humphries a famous (or infamous) case, there was a second issue that the majority did not resolve: Whether the Air Force CCA had the authority to practically force the convening authority to suspend an adjudged punitive discharge by concluding that a sentence that includes an unsuspended punitive discharge is inappropriately severe.

Chief Judge Baker and Judge Stucky, who both dissented from the majority’s decision on the terminal element issue, would have resolved this other issue against the CCA. Both were blunt. Chief Judge Baker wrote, “If the Court of Criminal Appeals was seeking to accomplish an appropriateness end to which it did not itself have the authority to reach— suspension of a bad-conduct discharge— then it was acting beyond its legal authority.” 71 M.J. at 219. Judge Stucky wrote, “In this case, the CCA thought the bad-conduct discharge that the convening authority approved should be suspended. Apparently recognizing that they did not have the power to suspend the bad-conduct discharge, they remanded the case to the convening authority for a new action, basically giving him two options— either approve a sentence that did not include an unsuspended bad-conduct discharge or the CCA would set aside the bad-conduct discharge. The CCA was without authority to take such action.” 71 M.J. at 223-224.

Recently, while reading decisions from the Navy-Marine Corps CCA, I was reminded of this issue. In particular, two cases decided by per curiam decisions from a three-judge panel of that court (the same panel in both cases), purport to suspend portions of adjudged confinement. The CCA’s action in each case resolves the failure of each convening authority to abide by the terms of pretrial agreements that required suspension of confinement in excess of a certain number of months.

The cases are United States v. Fairley, No. 201400268 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.), and United States v. Moss, No. 201400286 (N-M. Ct. Crim. App. Dec. 23, 2014) (link to slip op.). The CCA’s action in Moss also purports to waive automatic forfeitures for the benefit of the appellant’s dependent.

Notably, the opinions indicate that neither appellant suffered additional confinement because of the each convening authority’s breach of the pretrial agreements, and that in Moss the appellant’s dependent actually received the automatically forfeited monies.

These cases present an interesting potpourri of issues. The CCA’s action is certainly practical – since neither appellant is suffering actual prejudice, one can understand not sending the case back to each convening authority for correction. But even if a CCA can force a suspension as a matter of sentence appropriateness (the issue in Humphries), a CCA can’t actually suspend a sentence, or waive automatic forfeitures, itself. Moreover, since the convening authority in each case (both of which are general court-martial convening authorities) approved and ordered executed in full the confinement, and the convening authority in Moss did not waive the automatic forfeitures, what of obedience to those orders?

Ironically, the appellant in Moss pleaded guilty to offenses that included four specifications of violating a general order or regulation.

2 Responses to “The NMCCA suspends two sentences”

  1. Dwight Sullivan says:

    Note that in United States v. Healy, a unanimous opinion authored by Chief Judge Everett, CMA stated, “Consistent with our interpretation of the allocation of responsibilities intended by Congress, we have held that a Court of Military Review may not itself suspend a sentence to a punitive discharge, even if it determines that an unsuspended discharge is inappropriate.  United States v. Clark, 16 M.J. 239 (C.M.A. 1983).  However, under such circumstances it may remand to the convening authority to consider whether he wishes to suspend the discharge.  Id. at 243 (Everett, C.J., concurring).”  26 M.J. 394, 396 n.4 (C.M.A. 1988).
    In a summary disposition, CMA directed NMCMR to consider, among other issues, “Whether, in the event appellant does not meet the criteria for consideration under [the Marine Corps’ family advocacy program], the record of trial should be remanded to the convening authority for further consideration in light of the fact that ‘the … sentence he has approved is inappropriate’ and with directions that no sentence be approved if it includes punishment greater than a discharge suspended under proper conditions.”  United States v. Bell, 30 M.J. 168, 168 (C.M.A. 1990) (mem.).
    [DISCLAIMER AND DISCLOSURE:  This post is made in my individual capacity and should not be imputed to DoD or anyone or anything else.  I was one of the appellate defense counsel in Humphries.]

  2. Don Rehkopf says:

    C.J. Everet was ever the practical jurist who knew how to finesse a just result, even when the law perhaps technically didn’t authorize it.  In U.S. v. Olson, 25 M.J. 293 (CMA 1988)[DISCLAIMER: I was Olson’s counsel throughout], a travel voucher fraud case, a pre-condition to the CA accepting the PTA was that the accused pre-pay all restitution.  After considerable negotiations, the TC, Base Comptroller and I reached an agreement on the total amount of restitution, the accused paid it, PTA accepted, plea accepted, Court adjourned.  One week later, the Finance Office claimed that they had made a “mistake” in the calculations of the restitution amount and just administratively deducted @ $1100 from his pay.
    We moved for a post-trial Art. 39(a), session – denied. Requested that the CA order a post-trial 39(a) session as the RoT wasn’t yet authenticated – denied. Notably, the TC opposed both.  AF CCA denied relief, but the then CMA via CJ Everett got everyone [except the Finance people] on-board:

    Although we have no statutory authority to review Air Force administrative action for collecting debts, we are empowered to review court-martial sentences. In this case, we believe this power can be exercised to carry out the intent of the pretrial agreement. In this connection, we observe that the amount of the fine ($1,000.00) is almost equivalent to the $1,107.07 which was collected administratively from the accused. If the fine is set aside, Olson will receive a financial benefit substantially equivalent to the amount of pay recouped administratively by the Air Force. Id. at 298
    Our remedy is predicated on the assumption that the Government would prefer to have the findings of guilty stand without a rehearing, rather than to have guilt determined at a new trial. If, however, our premise is erroneous, the Government may seek reconsideration of this decision with a view to having a rehearing on findings and sentence. Id. at 299.

    Sometimes practicality is more important legally then technicality.