Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of the appellee’s position in this case. The brief is available here and is discussed in this post.

CAAF will hear oral argument in the certified Air Force case of United States v. Chin, No. 15-0749/AF (CAAFlog case page), on Wednesday, January 13, 2016, at 9:30 a.m. The case challenges the authority of the Air Force Court of Criminal Appeals to grant relief for an unreasonable multiplication of charges despite the appellee having waived the issue in a pretrial agreement.

Last August (as discussed here), the Judge Advocate General of the Air Force (no typo) certified one issue to CAAF:

Whether the Air Force 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).

In November (as discussed here), the JAG amended the certified issue to remove the reference to an abuse of discretion:

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).

In accordance with a pretrial agreement, the appellee pleaded guilty at a general court-martial composed of a military judge alone 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. The charges related to the appellee’s mishandling of classified material. The adjudged sentence was confinement for 12 months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority approved only 10 months of confinement (as an act of clemency unrelated to the terms of the pretrial agreement).

The appellee’s pretrial agreement included a provision by which the appellee waived all waivable motions. Waiver is the intentional relinquishment of a known right. Waiver is distinct from forfeiture, which is the failure to preserve an error. Making a timely objection preserves an error. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief for a waived error.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) – also an Air Force case – CAAF held that issues of multiplicity and unreasonable multiplication of charges may be waived in a pretrial agreement. Gladue affirms that the provision in the pretrial agreement in Chin that waived all waivable motions served to waive the issue of unreasonable multiplication of charges, meaning that the appellee was not entitled to any relief from this issue. However, despite the waiver, the AFCCA found that there was an unreasonable multiplication of charges and granted limited relief.

In granting relief for a waived issue, the AFCCA explained that:

[E]ven after Gladue, 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. Because of the unreasonable multiplication of charges so plainly presented in this case, we elect to exercise our plenary, de novo power of review and have determined that not all of the findings of guilty should be approved. We recognize this is a significant departure from our consistent practice of declining to review, on appeal, issues that were waived at trial. This deviation from our past treatment and application of waiver is warranted by the facts of this case, as explained in the analysis that follows. We differentiate this case from those in which we have found waiver, in that the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality. Under our broad Article 66(c) authority, we find that not all of the appellant’s convictions should be approved.

Slip op. at 6.

The certified issue challenges the CCA’s authority to take this action.

The Government’s brief asserts that:

AFCCA erroneously declined to apply waiver to this case despite the clear and binding guidance from this Court.

Gov’t Br. at 8. This argument seems to ignore the portion of the CCA’s opinion where it explained that granting relief in this case “is a significant departure from our consistent practice of declining to review, on appeal, issues that were waived at trial.” Slip op. at 6 (emphasis added). However, the Government’s brief really makes a larger claim:

Gladue clearly commands that when an appellant expressly waives multiplicity and unreasonable multiplication of charges, appellate review of those issues is extinguished.

Gov’t Br. at 12. Put differently, the Government asserts that the CCA had no authority to grant relief despite the waiver.

The Army, Coast Guard, and Navy-Marine Corps Appellate Government Divisions all filed amicus briefs in support of the Air Force Government position in this case. The Coast Guard and Navy-Marine Corps briefs are very short and do little more than agree with the Air Force Government position. The Army brief, however, is more substantive. It also seems to contradict the Air Force Government brief in that it acknowledges that the CCA found that the issue was waived:

In this case, AFCCA properly exercised its Article 66(c), UCMJ, powers to evaluate the circumstances of appellee’s waiver to ensure it was knowing and voluntary. However, upon finding an affirmative waiver, AFCCA erred by substantively addressing this foreclosed issue.

Army Br. at 10 (emphasis added).

The appellee’s brief focuses on the CCA’s appropriateness power:

CCAs can assess the record and determine whether the findings and sentence “should be approved,” thus Article 66(c) empowers CCA’s to perform an appropriateness review of courts-martial findings and sentence.

In the event a CCA finds error, the CCA may disapprove a court-martial finding, even if the error does not rise to the level of requiring disapproval of the finding as a matter of law; e.g., in the context of trial errors in which doctrines applicable to issues of law, such as waiver, would preclude CCA action in the absence of the “should be approved” language of Article 66(c).

Appellee’s Br. at 4-5. The appellee’s brief hints at what I think is an essential point about the issue in this case: a CCA may disapprove a finding even if it is correct in law. Article 66(c) vests broad power and responsibility in the courts of criminal appeals:

In a case referred to it, the Court of Criminal Appeals . . . may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.

(emphasis added). CAAF has explained that the courts of criminal appeals have the inherent authority to determine, in the interest of justice, that a certain finding or sentence should not be approved. United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). They may “determine the circumstances, if any, under which [they] would apply waiver or forfeiture.” United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). They may even “act[] to disapprove findings that are correct in law and fact.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010).

The Marine Corps Defense Services Organization filed an amicus brief in support of the appellee’s position that highlights this unique power of the CCAs, including their recognized ability to disapprove findings that are otherwise correct in law and fact. The brief also asserts that the Government’s position would read the pretrial agreement provision at issue in this case as the functional equivalent of a waiver of appellate review – something that may not be waived in a pretrial agreement:

A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(c), UCMJ. An accused may waive such review under limited circumstances. See Article 61, UCMJ. However, such waiver may not be “compel[led], coerce[d], or induce[d].” Rule for Courts-Martial 1110(c). Further, “a term or condition in a pretrial agreement shall not be enforced if it deprives the accused of . . . the complete and effective exercise of post-trial and appellate rights,” Rule for Courts-Martial 705(c)(1)(B).

Appellee’s pretrial agreement did not waive appellate review and, even if it did, any such waiver would be invalid.

DSO Br. at 3.

The DSO brief concludes by highlighting the unique posture of this case based upon the wording of the amended certified issue:

The facts of this case potentially present two separate questions: Whether there was an unreasonable multiplication of charges and whether the Court of Criminal Appeals was able to consider that issue despite the waiver in the pretrial agreement. The certification raises only the latter question, and the amended certified issue raises it only in the context of whether a court of criminal appeals is prevented from considering a waived issue as a matter of law. In particular, the amended certified issue removes the originally certified question of whether the Court of Criminal Appeals abused its discretion in considering the waived issue in this case.

When a court of criminal appeals disapproves findings that are correct in law and fact, as occurred here, this Court “accept[s] the CCA’s action unless in disapproving the findings the CCA clearly acted without regard to a legal standard or otherwise abused its discretion.” Nerad, 69 M.J. at 147. Yet in the amended certified issue the Judge Advocate General of the Air Force removed the question of whether the Court of Criminal Appeals abused its discretion in this case. The certified issue now questions only whether the Court of Criminal Appeals could disapprove the findings of guilt to the unreasonably multiplied charges, and not whether it should have done so under the facts of this case.

DSO Br. at 7-8 (emphases in original).

The fact that the certified issue was amended to remove any reference to whether the CCA abused its discretion in granting relief is a significant factor. If CAAF limits its review to that question, then it will only determine whether a CCA has the power to grant relief for a waived issue (and not whether the power was appropriately exercised in this case). The appellee in this case may well have received a totally undeserved windfall when the CCA granted relief for an unreasonable multiplication of charges despite the waiver provision in the pretrial agreement. However, the possible existence of such a windfall is not what the Government asked CAAF to review.

Our #5 Military Justice Story of 2015 was the trend towards narrow reading of the jurisdiction of the courts of criminal appeals. If CAAF finds that the Air Force CCA committed legal error in this case by using its Article 66(c) power to grant relief for a waived issue, it would continue that trend.

Case Links:
AFCCA opinion
Blog post: The Air Force JAG certifies two cases
Blog post: The Air Force JAG amends the certified issue
Appellant’s (Government) brief
• Appellee’s Brief
Amicus Brief of Navy-Marine Corps Appellate Government Division
Amicus Brief of Army Appellate Government Division
Amicus Brief of Coast Guard Appellate Government Division
• Amicus Brief of Marine Corps Defense Services Organization
Blog post: Argument preview

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