CAAF decided the certified Air Force case of United States v. Atchak, 75 M.J. 193, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

Judge Ryan’s opinion begins with a blunt characterization of the Government’s goal with this case:

We answer the certified question in the negative: the plain language of Article 66(d), UCMJ, 10 U.S.C. § 866(d), provides that when a CCA sets aside findings, it “may … order a rehearing,” and if it does not, “it shall order that the charges be dismissed.” Id. (emphasis added). We decline the Government’s invitation to transform the permissive statutory “may” into a mandatory “must.”

Slip op. at 2 (emphases in original). The opinion later elaborates that:

Article 66(d), UCMJ, provides:

If the [CCA] sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

The text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing. The statute says that a CCA may order a rehearing; it does not say that it must. “May” is a permissive term, see United States v. Moss, 73 M.J. 64, 68 (C.A.A.F. 2014), and indicates that Congress intended to provide the CCAs with discretion on this point. See United States v. Henderson, 52 M.J. 14, 20 (C.A.A.F. 1999).

Slip op. at 4.

Considering the unambiguous language of the statute, its impossible to believe that the Government didn’t expect exactly this result.

However, Judge Ryan then conducts a substantive review of the CCA’s exercise of its discretion in this case:

Although this appears to be an issue of first impression, we generally review a CCA’s action under Article 66, UCMJ, for an abuse of discretion. See, e.g., United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). In this case, there is no indication that the AFCCA was unaware of the option to remand for a rehearing on the findings it set aside. Indeed, the Government essentially demanded that the AFCCA grant such a rehearing in its motions for reconsideration and reconsideration en banc. Nor, given the AFCCA’s assessment of the state of the record on the question of consent, the state of the law on consent as a defense to assault consummated by a battery, see United States v. Riggins, 75 M.J. 78, 83–84 (C.A.A.F. 2016), and the CCAs’ ability to independently assess the facts, see United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), was the AFCCA’s decision not to order a rehearing to permit the Government to try and prove the LIO of assault consummated by a battery an abuse of discretion. Cf. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) (“We will only disturb the [lower court’s] reassessment in order to prevent obvious miscarriages of justice or abuses of discretion.” (alteration in original) (citation omitted) (internal quotation marks omitted)).

Slip op. at 5.

CAAF’s decision to review the AFCCA’s decision to not authorize a rehearing for an abuse of discretion is very likely the Government losing the battle in this case but winning the war. Judge Ryan’s first consideration (that the CCA was aware of the ability to authorize a rehearing) is something of a non-sequitur; if anything the Air Force CCA overestimates its own power. See, e.g., United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page) (concluding that the Air Force CCA did not have jurisdiction to consider the appellant’s petition for extraordinary relief because the JAG did not refer the case). However, Judge Ryan’s second consideration (regarding the record, the state of the law, and the CCA’s ability to substitute its own judgment for that of the court-martial) is functionally – if not actually – an intrusion upon an otherwise purely discretionary act by the CCA.

Such an intrusion, of course, is entirely within the power of CAAF. But it’s hard to avoid the conclusion that encouraging such an intrusion was the real reason for the certification of this case.

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Appellant’s (Government) brief
Appellee’s brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: A CCA need not order a rehearing, nor did the CCA abuse its discretion by failing to order one, in United States v. Atchak, No. 16-0054/AF”

  1. Tami a/k/a Princess Leia says:

    Government shouldn’t look a gift horse in the mouth.  AFCCA gave the government guaranteed convictions on the military offenses and guaranteed jail time and a BCD.  Sending it back for a rehearing on findings also requires a rehearing on sentence, and there’s no guarantee this airman would’ve gotten jail time and/or a BCD. 
    I think it’s significant that this was a guilty plea.  Had this been a contested case, the record would’ve been much clearer about consent and knowledge of HIV status, and AFCCA could’ve affirmed an LIO of ACBB.  Or perhaps AFCCA learned the lesson we all learned in Gutierrez–don’t affirm an LIO when there’s nothing in the trial record that covered that possibility.  But that also doesn’t require sending the case back for a rehearing on findings.
    Also very interesting that this case wasn’t charged as a sexual assault or forcible sodomy.