The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.

2 Responses to “The Air Force JAG certifies two cases to CAAF”

  1. Back Seat Driver says:

    I’m sure that many officers have input when the JAG certifies an issue to CAAF. Could someone please explain to me, then, why superfluous language ends up in the issue statement? (And this is not a dig on the Air Force because I’ve seen Code 46 do this too.) Maybe its just me, but I expect better issue statements from the JAG, than from appellate defense (because more senior officers weigh-in on a JAG certification). What value does: “and committed legal error,” or “in direct contravention of this court’s binding precedent” contribute? Does anyone really think that the CAAF judges don’t know what “(C.A.A.F.)” means? Shouldn’t a JAG certified issue should be more measured? The additional language adds nothing, other than to poke AFCCA. These issues would be much better stated thusly:

    Did the Air Force Court of Criminal Appeals abuse its discretion by finding that Article 66, UCMJ authorizes sentence appropriateness relief, for post-trial confinement conditions, even without a violation of the eighth amendment or Article 55, UCMJ?

    Did the Air Force Court of Criminal Appeals abuse it discretion by finding that unreasonable multiplication of charges was not waived, contrary to United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009)?

  2. Bill Cassara says:

    This is surprising because normally when AFTJAG certifies an issue is to benefit the airman. Oh. Wait. Never mind.