In the certified case of United States v. Chin, No. 15-0749/AF, the Air Force JAG is challenging the CCA’s authority to disapprove pleas of guilty (but approve the adjudged sentence) due to unreasonable multiplication of charges despite the appellant entering into a pretrial agreement that including a provision waiving all waivable motions. The CCA’s decision is available here.

When the JAG certified the case to CAAF, the certification identified the following issue for the court’s review:

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)

However, last week the Air Force JAG amended the certified issue, removing reference to an abuse of discretion by the CCA:

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

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) 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 parties may file additional briefs on the amended certified issue under Rule 22(b) within 10 days of the date of this notice.

Notably, Gladue was also an Air Force case. The appellant in Gladue entered into a pretrial agreement with a similar provision waiving all waivable motions. On appeal he asserted that the provision did not prevent him from raising multiplicity or multiplication of charges issues. The Air Force CCA rejected that claim in a published decision, 65 M.J. 903, and CAAF affirmed, holding that the waiver in the PTA extended to the multiplicity and multiplication issues on appeal.

In Chin, the Air Force CCA explicitly acknowledged the holding of Gladue but nevertheless granted (limited) relief. The CCA based its action on the fact that “this court’s statutory authority to affirm findings of guilty and any or all of the resultant sentence is limited to affirming only those that we find correct in law and fact and determine, on the basis of the entire record, should be approved. See Article 66(c), UCMJ.” United States v. Chin, No. 38452, slip op. at 6 (A.F. Ct. Crim. App. Jun. 12, 2015) (emphasis in original). In particular, the CCA granted relief despite the waiver because “the unreasonable multiplication of charges [is] so plainly presented in this case,” and because “the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality.” Id.

CAAF has interpreted the Article 66(c) power at issue, explaining that:

[W]hen a CCA acts to disapprove findings that are correct in law and fact, we accept the CCA’s action unless in disapproving the findings the CCA clearly acted without regard to a legal standard or otherwise abused its discretion. A CCA abuses its discretion when it disapproves a finding based on purely equitable factors or because it simply disagrees that certain conduct— clearly proscribed by an unambiguous statute— should be criminal.

United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010) (emphasis added).

Chin potentially presents two separate questions: Whether there was an unreasonable multiplication of charges and whether the CCA was able to consider that issue despite the waiver in the pretrial agreement. The certification raises only the later question, and the amended certified issue raises it only in the context of whether the CCA is prevented from considering a waived issue as a matter of law. In particular, the amended certified issue removes the claim that the CCA abused its discretion in considering a waived issue, seemingly binding the Government to a purely legal argument.

Both the CCAs and CAAF have the authority to (and routinely do) specify issues for review that were not raised by either side. By casting the CCA’s consideration of the multiplication issue in Chin as a question of law and not a matter of the court’s discretion, the Air Force JAG seemingly wants to bind the CCAs (and, presumably, CAAF) to a non-discretionary standard for the specification of issues. In other words, Chin looks to be about whether military appellate courts are prohibited as a matter of law from considering certain legal issues in a case. If that’s the Government’s argument, then success at CAAF could dramatically change the nature of appellate review of courts-martial.

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