CAAF will hear oral argument in the Air Force case of United States v. Arness, No. 14-8014/AF (CAAFlog case page), on Tuesday, February 10, 2015. The case initially went to CAAF as a writ-appeal of a decision of the Air Force CCA. Petitioner/Appellant (hereinafter “Appellant”) is a Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69.

Nevertheless, Appellant sought collateral review by the Air Force CCA in the form of a writ of error coram nobis under the All Writs Act, alleging 13 errors in the court-martial proceedings. The CCA concluded that it had jurisdiction to review the Appellant’s petition, but that he was not entitled to relief. Appellant then appealed to CAAF, raising the same 13 errors. See Gov’t Br. at 2. But CAAF specified a different issue for review:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

The CCA found that it had jurisdiction to consider the petition based Article 69(d), which states:

(d) A Court of Criminal Appeals may review, under section 866 of this title (article 66)—
(1) any court-martial case which (A) is subject to action by the Judge Advocate General under this section, and (B) is sent to the Court of Criminal Appeals by order of the Judge Advocate General; and
(2) any action taken by the Judge Advocate General under this section in such case.

Appellant’s brief asserts that this provision of the UCMJ gives the CCA jurisdiction to consider his assertions of error because:

Since AFCCA could have properly reviewed the original proceeding under Article 69, UCMJ, a court of criminal appeals (CCA) retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. The potential jurisdiction over these types of cases, i.e. the potential sentence, actual TJAG review, or the fact TJAG can forward the case to the CCA, provides a basis for entertaining writs under the All Writs Act.

App. Br. at 6 (citations omitted). The brief adds:

The writ aided AFCCA’s existing jurisdiction because Article 69(d)(2) authorized it to review “any action taken by the Judge Advocate General under.”

App. Br. at 8 (emphasis added). This is a rather tortured interpretation of the language of Article 69(d)(2) that states that a CCA can review “any action taken by the Judge Advocate General under this section in such case” (emphasis added). A natural reading of the term “such a case” is that it describes cases that are actually “sent to the Court of Criminal Appeals by order of the Judge Advocate General.” Article 69(d)(1). That was not done in this case.

Appellant also asserts:

The inability of Appellant to seek relief would allow the government to potentially bypass the safeguards instituted by Congress by seeking forums that offer sub-jurisdictional sentences or by seeking sub-jurisdictional sentences.

App. Br. at 10-11 (emphasis added). This immediately brings to mind CAAF’s summary decision in United States v. Hathorne, __ M.J. __ (C.A.A.F. Apr. 26, 2012) (summary disposition) (CAAFlog case page), about which I wrote: “Was Hathorne the best case of the [September 2011] term?” During the oral argument of Hathorne there was some discussion of the origin of the term “sub-jurisdictional,” and I think there’s good reason to believe that CAAF disapproves of the term. Rather than certain cases being “sub-jurisdictional,” there are cases where review by a CCA is automatic and cases where review by the CCA is at the discretion of the Judge Advocate General. Arness is an example of the latter.

The Government’s brief in Arness is short and straightforward:

Article 66(b), UCMJ, limits the jurisdiction of a court of criminal appeals to the review of a court-martial in which the “sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or badconduct discharge, or confinement for one year.” Simply put, Petitioner’s case does not meet the Article 66 jurisdictional limits of the lower Court’s authority to review a court-martial sentence as his approved sentence was only 11 months of confinement and a reprimand. (JA at 11, 123.) Moreover, TJAG did not refer this case for Article 66 review as provided in Article 69. So, the Air Force Court had no existing statutory jurisdiction to review Petitioner’s request for extraordinary relief; the lower Court clearly erred by finding “the requested writ is ‘in aid of’ our existing jurisdiction” and must be reversed by this Court.

Gov’t Br. at 5-6.

I think it notable that this case appears to involve one very unfortunate (though likely irrelevant) fact: Appellant did not raise assertions of error to the Judge Advocate General. Appellant’s brief presents the following timeline:

On 26 March 2010, The Air Force Office of The Judge Advocate General (TJAG), exercising review under Article 69, UCMJ, 10 U.S.C. § 869, determined the findings and sentence were supported in law. (J.A. 107). Appellant never received notice of the Article 69(a) review and subsequently submitted a written request for review under Article 69. (J.A. 27-55). On 2 August 2011, the Military Justice Division of the Air Force (JAJM) denied the request for review. (J.A. 56-57). Appellant requested reconsideration and review under Article 69(a) and (b) of the UCMJ.4 (J.A. 58-59). On 15 September 2011, citing that Appellant’s conviction was final under Article 76, UCMJ, 10 U.S.C. § 876, JAJM denied the request for reconsideration. (J.A. 60-61). On 19 December 2013, Appellant filed a pro se petition for writ of error coram nobis in the Air Force Court of Criminal Appeals (“AFCCA”).

App. Br. at 2-3. While Appellant’s brief states that he did not receive notice of the Article 69 review, I expect that he was advised of his appellate rights before the conclusion of the court-martial, as such advice is required by RCM 1010. Nevertheless, the CCA’s opinion notes that Appellant “claims he did not receive the action until 19 April 2010, but he offers no evidence to support this contention.” Slip op. at 5. If Appellant in fact did not receive the convening authority’s action until after the Judge Advocate General acted, the certainly appears to constitute good cause for late submission of matters to the JAG (paragraph 11.5.1 of Air Force Instruction 51-201 requires submission within 30 days of the action).

But I doubt CAAF will dig that deeply into the facts of the case.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Two interesting grants and a really interesting order from CAAF
Blog post: Argument preview

One Response to “Argument Preview: United States v. Arness, No. 14-8014/AF”

  1. Phil Cave says:

    As a side note.  I don’t think it too unlikely or unusual that the petitioner received the CAA late, possibly outside the 30 days (experience). Where was he confined?  How was the CAA provided him?  By mail — post-marks? return receipt’s? certified mail?  (i.e. evidence).  Consider mail delays and such?  And he’s confined, what access to resources to submit anything?  Did he have the advice of counsel once the 1105 matters were submitted?  A good reason for a brief under Article 38(c) during the 1105 submission.  Frankly I’d recommend this anytime a “subjurisdictional to a CCA” sentence is given.  Hopefully, the defense counsel are explaining this AFTER the sentence, and not relying on the pre-sentence advise and MJ’s inquiry.
    That’s why – the delay in receipt of the CAA when we do 69A cases, we typically ask for ‘reconsideration” in the alternative if it is outside the “window.”
    Also, could the AF 30 days be considered an arbitrarily short period that effectively deprives the person of some regulatory right?  Or is that just, as Zach says, good cause to waive the rule?
    On the issue though I think he loses.  A good reason to institute the appeal process changes that allow access to a CCA regardless of sentence, perhaps limited to a right to petition rather than mandatory (and mandatory in a NG plea case) – a topic much discussed over the years.  This case appears emblematic of why there should be such changes – 9.5 months is not an insignificant time to spend in confinement.