On Friday, January 30, CAAF docketed a certificate for review of the NMCCA’s decision in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014). I analyzed the CCA’s opinion in this post.

In Quick, the NMCCA significantly limited the reach of Article 120c(a)(1) (2012), finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reversed the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification failed to state an offense. The CCA then ordered a sentence rehearing.

The Government didn’t certify the CCA’s decision regarding Article 120c(a)(1). Rather, it certified an issue challenging the authority of the CCA to order a sentence rehearing in any case:

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 201300341.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.

5 Responses to “A significant decision from the NMCCA gets even more significant”

  1. RY says:

    Ummm, CMA spoke on this in 1959, CMA in US v Miller and explained exactly this.  CMA looked at it again in 1986 in Sales.  Then in 2013, CAAF looked at the whole issue in Winckelmann.  I get the cert here though…they are reading Judge Stucky’s concurring opinion in Winckelmann and Judge Ryan’s concurring opinion in the same and wondering if Judge Olson will change the result.  Problem is, Judge Ryan did not say she agreed that is the right answer now because we have 57 years of stare decisis to contend with…indeed, Congress has tinkered with the UCMJ heavily in the last 8 years with nothing being off-limits really.  If they had a problem with CAAF’s application of sentence rehearings, they’ve had plenty of opportunity to say so.  Even then, it is not a stretch to see that if the CCA can order a complete rehearing, that it would not be Congress intent to permit limited rehearings in the rare cases where CCA judges are uncomfortable reassessing the sentence because of dramatic changes, not to mention Baker’s dicta in previous cases about the legality of determining a new sentence by judges when the member elected a jury to make that determination.  To be sure, it is not the same in civilian courts but juries still decide sentences in the military and that right bears some consideration in the Sales criteria.  

  2. stewie says:

    So no more sentence-only rehearings?? Why would you want to certify that argument? Do you want only the service court to have the ability to reassess? Why would you want that?

  3. Sea Lawyer says:

    This certification smells like it wants an advisory opinion. Although the CAAF is not an Article III court, it nevertheless adheres to the prohibition on issuing advisory opinions as a matter of prudence. 

  4. anon says:

    To the extent that government is relying on language (that I don’t see) “findings and sentence or both”, because the “and” is solely intended to be a conjunctive, they may want to consult with an English professor at Naval Academy. When the modifier “or both” is used, my third-grade teacher would state (in red ink along with a C-) that the conjunctive and disjunctive are intended.

  5. Cap'n Crunch says:

    This is not a sentence-only rehearing  case.  They set aside the 120 count.  Thus, 66(d) clearly applies.  Govt Appellate Counsel = epic fail on this one.  United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 (CMR 1959); United States v. Sills, 56 M.J. 239, 240 (C.A.A.F. 2002); United States v. Nerad, 69 M.J. 138 (CAAF 2010).