Yesterday, in this post, I noted CAAF’s dismissal of a petition for lack of jurisdiction. I speculated that the absence of jurisdiction was caused by the appellant and his counsel missing the petition deadline.

My speculation was wrong. The pleadings (discussed below) reveal that the deadline wasn’t missed. Rather, prior to petitioning CAAF, the appellant withdrew his appeal.

Airman First Class (E-3) Rivera was charged with numerous offenses – some sexual – at a general court-martial. He pleaded guilty to dereliction of duty and not guilty to the other offenses. He was convicted of one of those other offenses: forcible sodomy in violation of Article 125. The members sentenced him to confinement for 6 months, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge.

The Air Force CCA reversed the forcible sodomy conviction (discussed here). It then reassessed the sentence, approving only reduction to E-1, forfeiture of $1,000 pay per month for two months, and a reprimand.

This action entitled Rivera to restoration to regular duty, but left him with a general court-martial conviction for mere dereliction of duty.

Both Rivera and the Government sought reconsideration from the AFCCA. The CCA’s final action denying those motions occurred on April 29, 2016, extending the deadline to petition CAAF to June 28. See United States v. Smith, 68 M.J. 445, 446-447 (C.A.A.F. 2010) (“until the CCA rendered a decision on the reconsideration request, either by denying reconsideration or by granting reconsideration and rendering a new decision, there was no CCA decision for this Court to review.”). Rivera’s petition for review at CAAF was filed on May 2, and so it was timely. I apologize for doubting the Air Force appellate defense division.

But on March 29 (after the CCA’s initial decision) Rivera’s counsel sent an email to various Government representatives stating in part that:

The United States has declined to seek further appellate review of this case. (See email chain below.)

I have consulted with AB Rivera, and he also has elected to not appeal the Air Force Court’s decision to the U.S. Court of Appeals for the Armed Forces.

AB Rivera expressly requests that action be taken as soon as possible under Article 66(e), UCMJ, giving full effect to the Air Force Court’s decision. He further asks for immediate restoration under Articles 58b(c) and 75(a}), UCMJ, as was ordered by the Air Force Court nearly six weeks ago, on February 18, 2016. (See attached decision.)

Attachment to Gov’t Ans. (PDF at 29) (link).

As a result, the Government issued a memorandum that the findings and sentence are final and conclusive under Article 76. Attachment to Gov’t Ans. (PDF at 28) (link).

Rivera’s counsel also asked the convening authority to dismiss the dereliction conviction. The convening authority responded that he would like to do so, but he can’t. Specifically, he wrote:

If the forcible sodomy allegation had properly resulted in an acquittal at trial, and if I had been in command when initial action was taken, then I could have exercised authority under Article 60, UCMJ, to set aside the finding of guilt for dereliction of duty. Airman Rivera’s misconduct warrants punishment, but I do not believe a general court-martial is the appropriate forum for that punishment. I would like to take clemency action now. However, I have been advised that since AFCCA reassessed the sentence that decision and relevant portions of the UCMJ do not afford me the possibility of exercising a set aside.

Appendix C to Supp. to Pet. (PDF at 26) (link).

And so Rivera’s counsel first asked the CCA for reconsideration, and then petitioned CAAF asking that the case be returned to the convening authority for a new action (in which the convening authority could have disapproved the finding of guilty of the dereliction offense). The argument for this result was that Rivera didn’t receive a full and fair convening authority’s review because of the now-dismissed forcible sodomy conviction.

The Government opposed review, asserting primarily that Rivera waived further appellate review.

There is, however, a big problem with the Government’s waiver argument: under Article 61(a) a waiver must be “be signed by both the accused and by defense counsel and must be filed within 10 days after the action under section 860(c) of this title (article 60(c)) is served on the accused or on defense counsel.” The email from Rivera’s military defense counsel meets neither of these statutory requirements for a waiver of appellate review.

Article 61(b), however, states that “the accused may withdraw an appeal at any time.” (emphasis added).

CAAF’s dismissal of the petition doesn’t explain whether the court considered the appeal to be waived or withdrawn, but considering this procedural history and the statutory requirements for waiver, I feel confident that the court considered any further appeal to be withdrawn and it accepted the memorandum that the findings and sentence are final and conclusive under Article 76 as the final action in the case.

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