In the certified Air Force case of United States v. Chin, No. 15-0749/AF (CAAFlog case page), CAAF is considering a Government challenge to 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.
Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of the appellee’s position in Chin. The brief is available here and was discussed in my argument preview.
The AFCCA decided Chin on April 7, 2015, and then reaffirmed its decision by reconsideration on June 12, 2015. The Air Force JAG certified the case on August 11, 2015.
After Chin was certified, the CCA applied its reasoning from Chin to grant similar relief in United States v. Jeffers, No. 38664 (A.F. Ct. Crim. App. Oct. 28, 2015) (discussed here). The appellant in Jeffers pleaded guilty to both involuntary manslaughter and negligent homicide for the death of a fellow Airman in a drunk driving incident. A pretrial agreement included a provision waiving all waivable motions. Nevertheless, the appellant asserted on appeal that he should not be convicted twice for a single death, and the CCA agreed (but did not reduce the approved sentence).
The Air Force Appellate Government Division asked the CCA to reconsider its decision in Jeffers, asserting that the CCA applied the wrong standard of review for unreasonable multiplication of charges (the CCA reviewed the unreasonable multiplication de novo, rather than for an abuse of discretion), and also asserting that the CCA’s decision in Chin has no persuasive value.
The CCA granted reconsideration and corrected the standard of review (reaching the same conclusion), but it flatly rejected the Government’s argument that its own decision lacks persuasive value while pending review by CAAF. Chief Judge Allred writes for a three-judge panel, explaining that:
United States v. Chin is an unpublished decision and does not serve as precedent. Before us, the Government now argues that we should ignore the persuasive authority of that decision because it is inchoate due to TJAG’s certificate of review with our superior court. We find the reasoning in Chin persuasive and choose to reference it in this opinion; its value as persuasive authority is not diminished by its inchoate nature.
United States v. Jeffers, No. 38654, slip op. at 4 (A.F. Ct. Crim. App. Jan. 28, 2016) (op. on recon.) (link to slip op.).
But the Chief Judge goes even further, suggesting hypocrisy by the Government:
We also reject the Government request to abate these appellate proceedings. We note that we have previously relied on our published appellate decisions as binding precedent, even though inchoate, without objection by the Government. For example, on 26 March 2015, we issued a decision on whether Air Education and Training Command Instruction 36-2909, Professional and Unprofessional Relationships (2 March 2007), was a punitive regulation. United States v. LeBlanc, 74 M.J. 650, 654–56 (A.F. Ct. Crim. App. 2015). The appellant’s petition for review was denied on 6 July 2015. United States v. LeBlanc, 75 M.J. 17 (C.A.A.F. 2015) (mem.). While the LeBlanc decision was inchoate, we relied on it as binding precedent on 9 April 2015 in United States v. Crawford, ACM 38408 (A.F. Ct. Crim. App. 9 April 2015) (unpub. op.). The Government did not object to our relying on this inchoate opinion as binding legal precedent. We cite this example to illustrate that we routinely cite and rely on decisions by this court and our superior court that are inchoate as they are pending further review.
Ironically, both of the Government counsel identified in the CCA’s opinion in Crawford (link to slip op.) are also identified as Government counsel in Jeffers. Though perhaps that’s the Chief Judge’s point.