CAAF decided the Air Force case of United States v. Shea, 76 M.J. 277, No. 16-0530/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 30, 2017. Concluding that an appellant has no right to a CCA panel on remand that is composed of the same judges who considered the case on initial review, CAAF finds that there was no error in the changed composition of the panel in this case, and also that there is no evidence of unlawful influence in the circumstances leading to that change. The court affirms the decision of the Air Force CCA that reversed one of the convictions but affirmed the sentence as approved by the convening authority.

Judge Sparks writes for a unanimous court.

Senior Airman (E-4) Shea was convicted of violations of Articles 90, 128, and 134, and was sentenced to confinement for four months, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved the adjudged forfeitures as an act of clemency. On appeal, the Air Force CCA reversed one of the convictions and reassessed the sentence, but erroneously approved the adjudged sentence (that included the forfeitures) rather than the lesser approved sentence. CAAF summarily remanded for a new sentence reassessment to fix this (possibly typographic) error, and the CCA ultimately approved the sentence as approved by the convening authority.

But between the time that CAAF remanded Shea (September 2015) and the CCA’s second decision (May 2016), the CCA decided the case of United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here). In Rivera a three-judge panel of the CCA reversed a conviction for forcible sodomy for factual insufficiency (side-stepping a due process challenge to the military justice system). Colonel Hecker was one of the appellate military judges on the panel that decided Rivera, though she did not author the opinion. She was also, at that time, assigned additional (administrative) duties within the Air Force military justice apparatus; a fact that became significant after the CCA found factual insufficiency in Rivera because after the decision was issued the Air Force Appellate Government Division moved to disqualify Judge Hecker from Rivera and get a fresh review of the case by a different panel (on the inane theory that, having concurred in the reversal of Rivera’s conviction, she was somehow biased in favor of the Government).

Judge Hecker was part of the original panel that reviewed Shea, but she was not part of the panel that reviewed the case on remand. This occurred after the Appellate Government Division’s attempt to disqualify Judge Hecker from Rivera, and Shea’s military appellate defense counsel objected on the basis that a panel must remain consistent. The objection was denied, the CCA approved Shea’s sentence as approved by the convening authority, and CAAF granted review of two issues:

I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.

II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.

Judge Sparks’ opinion for the unanimous court rests on two straightforward conclusions.

First, Judge Sparks concludes that Shea has no right “to have a panel composed of the same appellate judges review his case” on remand as conducted the original review. He reasons:

Nothing in the UCMJ, or rules of procedure provide Appellant the right to select a panel, or have his case considered by any particular panel. Article 66, UCMJ; A.F.C.C.A. R. 2.2(b); United States v. Vines, 15 M.J. 247, 249 (C.M.A. 1983). By law, the court may review cases en banc or in panels, and the chief judge of the court has broad authority to assign, remove and reassign judges to cases on the court’s docket. See Vines, 15 M.J. at 249 (hold-ing “that there are no restrictions—statutory or regulatory—on the authority of the Chief Judge, as administrative chief of the Court, to assign cases to panels as he wishes. In addition, the power to change panel assignment, once made, is likewise unrestricted”).

In Vines, the accused’s case was sent to the Army Court of Military Review and was assigned to Panel Four. 15 M.J. at 248. Through administrative or clerical error the case was inadvertently delivered to Panel Five. Id. Naturally, Panel Five was composed of different appellate judges than Panel Four. Id. After hearing the case, Panel Five affirmed the accused’s conviction. Id. The Vines court determined that it was error for another panel to decide the case absent a change-of-assignment order, however, that error was not prejudicial to the accused. Id. at 249. In the instant case the AFCCA did not err. Unlike Vines, the AFCCA issued a prop-er order notifying the parties of the change in the panel’s composition.

We recognize that, “many reasons exist for a change of assignment of cases ranging from workload of particular panels to reassignment of judges from a panel.” Id. The consideration of Appellant’s case by any properly constituted panel satisfies Article 66, UCMJ. Vines, 15 M.J. at 249.

Slip op. at 6.

Second, while Shea questions the impartiality and independence of the Air Force CCA, he offers no actual evidence of impropriety. Put differently, “Appellant has not met his initial burden of showing ‘some evidence,’ of apparent unlawful influence.” Slip op. at 8 (quoting United States v. Boyce, 76 M.J. 242 , __ (11) (C.A.A.F. 2017) [(CAAFlog case page)]). Judge Sparks explains:

[T]he AFCCA did not inappropriately remove Judge Hecker from the panel reviewing Appellant’s case. Article 66, UCMJ; A.F.C.C.A. R. 2.2(b); see also Vines, 15 M.J. at 249. . . .

Furthermore, Appellant did not present any evidence that a plan or scheme to unlawfully remove Judge Hecker existed. . . .

Appellant’s speculation in this case amounts to no more than a claim of command influence in the air. There is no regulation, statute, or authority that requires the AFCCA to dictate their reasoning for a change in a panel’s composition. Vines, 15 M.J. at 248-49 (citing Article 66, UCMJ).

Slip op. at 9.

CAAF’s opinion is hardly a vindication for the Air Force Appellate Government Division’s forehead-slap-worthy motion to disqualify Judge Hecker in Rivera that likely set these issues in motion in Shea. But, as I wrote in my argument preview, while the motion was embarrassingly bad and badly-timed, it was just a motion. Motions and objections aren’t unlawful influence and they don’t strain public perception of the system just as mere bad lawyering isn’t unethical, and concluding otherwise would discourage litigants from using the courts for their intended purpose.

But Judge Sparks’ citation to last week’s decision in Boyce strikes me as particularly significant. Boyce is more than two decades removed from the first case to hold that the defense has the initial burden to present some evidence of unlawful command influence. See United States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995) (explaining this as the same quantum of evidence as is “required to submit a factual issue to the trier of fact”). So it’s an odd choice for precedent. But Boyce was a case entirely about appearances where the appellant “did not suffer individualized prejudice. Boyce, slip op. at 19 n.10. I think Judge Sparks’ citation is intended to distinguish the facts of this case from the facts of Boyce.

One distinction is that there is no appearance of impropriety in the actions of the CCA, regardless of what the actions of the Air Force Appellate Government Division might say about military justice and how different they so often seem to be from the actions of, say, the Department of Justice where:

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

Case Links:
AFCCA opinion
AFCCA opinion on remand
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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