Opinion Analysis: A court of criminal appeals may grant relief for errors waived at trial, in United States v. Chin, No. 15-0749/AF
Disclosure: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin.
CAAF decided the certified Air Force case of United States v. Chin, 75 M.J. 220, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.
Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.
Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA 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 believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.
The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with 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).
In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.
Judge Ryan begins by acknowledging the general rule that “when an error is waived, the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis.” Slip op. at 3 (quoting United States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999)) (marks omitted). However, she finds that automatic review by a court of criminal appeals under Article 66(c) is “wholly dissimilar” from the kind of review conducted by other appellate courts. Slip op. at 4. Judge Ryan explains that, unlike other courts, the courts of criminal appeals conduct “a plenary review” and “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved.” Slip op. at 4 (quoting Article 66(c)) (marks and other citations omitted). This statutorily-required review, explains Judge Ryan, imposes an “affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved.” Slip op. at 4 (marks and citations omitted) (emphasis added). As such:
If an appellant elects to proceed with Article 66, UCMJ, review, as in this case, then the CCA is commanded by statute to review the entire record and approve only that which “should be approved.” A fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error.
Slip op. at 5 (emphasis in original). But the election an appellant makes does not occur in a pretrial agreement; it occurs if an appellant waives (or, more commonly, when an appellant doesn’t waive) appellate review pursuant to Article 61. Such a waiver is only effective if made after the convening authority acts. Chin made no such post-trial waiver, and the majority finds that it would “defy logic” to allow an accused to “sidestep Article 61” with a provision that would “in effect, waive the right to complete appellate review as part of a [pretrial agreement].” Slip op. at 5.
Yet Chin’s trial-stage waiver isn’t rendered totally meaningless, as the majority holds that “waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or this Court.” Slip op. at 6. The existence of such a waiver is also a factor that a court of criminal appeals should consider in determining whether to grant relief. And in this case the CCA did consider the waiver, explaining in its opinion that relief was warranted by the facts of this particular case. That, concludes Judge Ryan for the majority, “was well within the limitations of its Article 66(c), UCMJ, review.” Slip op. at 6.
Dissenting are Judges Stucky and Ohlson, and Judge Stucky’s dissenting opinion begins by castigating the majority as relying “on faulty readings of Articles 61 and 66.” Diss. op. at 1. Unlike the majority’s conclusion that Article 66(c) commands a court of criminal appeals to affirm only the findings and sentence that it believes should be approved, the dissenters read the statute as harmonious with traditional applications of waiver. “The ‘should be approved’ language,” asserts Judge Stucky, “does not grant the CCAs authority to disregard valid waivers and review the whole case as if a waiver never occurred, as the majority would have it.” Diss. op. at 2.
Judge Stucky also notes that the majority’s approach vests significant discretion in the courts of criminal appeals:
It gives a CCA unfettered discretion to impose its vision of fairness on the parties but prohibits the appellant from suggesting what is fair or which waived issues the CCA should consider. The CCA would rule by judicial fiat, as in this case, without giving the parties notice and the opportunity to argue their positions. This is a novel conclusion that smacks of judicial paternalism of the highest order. . . . The fact that the CCA may, but is not required to, consider that an accused waived the issue at trial is no standard at all. It is no more than the uncertain measure of the conscience of the particular judges presiding over the case – in other words, pure equity.
Slip op. at 3.
The final portion of Judge Stucky’s dissenting opinion is an observation of the importance of pretrial agreements in the military justice system, with a warning that without the “finality and enforceability” of a waiver in a pretrial agreement “the government has less incentive to engage in such negotiations.” Diss. op. at 4. However, considering the limited nature of the relief provided by the Air Force CCA in this case (and particularly the fact that it affirmed the sentence as approved by the convening authority), it’s hard to imagine that the Government will be dissuaded from entering into similar agreements in the future.
• AFCCA opinion
• Blog post: The Air Force JAG certifies two cases
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• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis