CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No.17-0326/AF (CAAFlog case page), on Tuesday, December 5, 2017, at 9:30 a.m. This is the second certification to CAAF in this case. Previously, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF held that expert testimony did not violate Katso’s constitutional right to confront the witnesses against him. Now, CAAF will review whether the Air Force CCA erred in giving Katso 365 days of credit against the adjudged sentence to confinement as a remedy for the Air Force failing to conduct a confinement review hearing after the CCA issued its original decision in the case (a decision that was reversed in CAAF’s prior review).

I outlined the procedural history of this case and the CCA’s decision granting the credit in this post.

The Judge Advocate General of the Air Force certified three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

The Air Force Government Appellate Division’s brief begins with a lengthy and meandering review of CAAF precedent involving an accused’s right to release from confinement after a favorable decision by the CCA. The brief eventually argues that CAAF precedent holds:

First, a decision of the CCA remains inchoate until executed by a convening authority or backed with a mandate from this Court. If a TJAG does not pursue further appeal of a decision of the CCA favorable to an appellant, such decision is returned to the convening authority for execution. At that point, the accused must be released or a pretrial confinement hearing must be held. On the other hand, if appealed, a favorable decision from a CCA remains inchoate. The decision does not transform an appellee, with an executed sentence to confinement, from a post-trial confinee to a pretrial confinee with no sentence. Instead, the findings and executed sentence remain, subject to an inchoate favorable decision of the CCA.

Regarding the requirement to hold a continued confinement hearing, Kreutzer substantially narrowed Miller to circumstances where the inchoate decision of the CCA reassesses the sentence to a term already served by the appellee. Kreutzer reaffirmed that appellees in continued confinement are not pretrial confinees, and are not subject to the protections of Article 13, UCMJ.

If the procedures of Miller do apply to a certain case, the appellee can request release. This is request is nothing more than a request for deferment of confinement pending further appellate review. Once an appellee requests release, the government can release him, or hold a continued confinement hearing.

Miller’s requirement to release an appellee or hold a continued confinement stems from this Court’s determination that a confined appellee’s interest in a favorable inchoate decision “becomes sufficiently weighty to warrant action” once a TJAG has made a decision to appeal the case further. Kreutzer, 70 M.J. at 446. This “interest” is the opportunity to avoid any further confinement in the event this Court upholds the lower court’s favorable decision.

Finally, the technical procedures outlined in R.C.M. 305 are applicable only to “pretrial confinees.” They do not apply to continued confinement hearings. Instead, R.C.M. 305 is merely used as a guide for conducting a continued confinement hearing, with the CCRO making the same type of determinations required by R.C.M. 305(h)(2)(B).

Gov’t Div. Br. at 22-23. The basic argument here is that an appellant who wins relief at a CCA has the same Article 57A(c) right to request release from confinement pending CAAF review as any other appellant whose case is certified to CAAF for review, but nothing more. Further, the Government Division argues that in the absence of such a request “the government does not have a sua sponte duty to review an appellee’s continued confinement after the appellee receives a favorable decision of the lower court.” Gov’t Div. Br. at 32.

The Government Division also argues that any error in the failure to hold a confinement review hearing after the CCA’s original decision was mooted when CAAF reversed that decision:

[A]ny “favorable interest” Appellee had in AFCCA’s original decision evaporated when this Court reversed it.

Gov’t Div. Br. at 24.

Katso’s short brief functionally ignores these arguments and focuses on a due process claim:

Airman Katso was entitled to receive such a continued confinement hearing. The obligation of the government to afford him that due process of law was therefore guaranteed by the Fifth Amendment. The government did not give Airman Katso the due process he was entitled to receive. Instead, without explanation, it deprived him of a continued confinement hearing for a full year.

Applee’s Br. at 6-7. This argument is pithy, but it doesn’t say anything if CAAF agrees with the Government Division that the interests at stake are something less than questions of constitutional due process.

Katso’s brief characterizes the CCA’s grant of 365 days of confinement credit as a discretionary action that is reviewed under the deferential standard of abuse of discretion, but I don’t think this is right. Questions of law (such as what due process requires and the meaning of the UCMJ and rules for courts-martial) are reviewed de novo, and a misapplication of the law is ipso facto an abuse of discretion (because there is no discretion to misapply the law).

Katso’s brief also makes an odd attack on CAAF’s jurisdiction. Article 67(a)(2) states that CAAF shall review “all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” But in a section titled “lack of statutory jurisdiction,” Katso’s brief suggests that the JAG’s motives matter:

TJAG may have signed the certificate for review in this case, but this is, in truth, a government, partisan, appeal. When acting to certify this case under Article 67(a)(2), and to specify issues for review under Article 67(c), TJAG was neither impartial nor independent. Instead, he was a member of the prosecution team. Over Airman Katso’s objections, he communicated ex parte with government counsel, and he specified the questions drafted by government counsel, nearly verbatim. No similar ex parte process was made available to Airman Katso.

Allowing such disparate treatment in the procedures by which a party may obtain review by this Court violates Airman Katso’s right to due process of law. As such, TJAG’s certificate for review is ultra vires, and forms a poor foundation for this Court to exercise jurisdiction.

Applee’s Br. at 2. Regrettably, the brief offers no law or precedent to support the proposition that a JAG must employ the certification power in a neutral and transparent fashion. Rather, recent history suggests otherwise. Specifically, in this post and this follow-up, both in 2014, I discussed the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The facts of Katso may prove that appearance to be reality, but that doesn’t necessarily mean it’s a justiciable legal error.

The Government Division’s reply brief deconstructs the due process argument:

Regarding Appellee’s argument that a continued confinement hearing was mandated by the Due Process Clause of the Fifth Amendment, there is no constitutional right to release pending appeal. See United States v. Affleck, 765 F.2d 944, 948 (10th Cir. 1985) (“There is no constitutional right to bail pending appeal.”); see also Levy v. Resor, 37 C.M.R. 399, 403 (C.M.A. 1967) (per curiam) (recognizing that the right to bail pending appeal was “not of constitutional dimensions”); United States v. Brownd, 6 M.J. 338, 342 (C.M.A. 1979) (Cook, J., concurring) (observing that “no constitutional right to bail applies in the military, and, more particularly, a convicted accused has no right to bail pending review of his conviction”).

Similarly, Appellee’s contention that confinement without due process is inherently prejudicial fails to acknowledge that he was a post-trial prisoner confined pursuant to an adjudged and executed court-martial sentence.

Reply Br. at 9. But because CAAF’s precedent establishes that Katso had an interest in the favorable CCA decision, this post-trial-prisoner argument is somewhat tied to the mootness argument:

Effectively, this Court’s reversal of AFCCA’s original opinion established that continued confinement was warranted. It also meant that any error in the continued confinement process merely resulted in Appellee serving his lawfully adjudged sentence. Accordingly, even if the government was required to hold a continued confinement hearing within seven days of TJAG certification, any failure to do so was mooted by this Court’s decision reversing the favorable decision of the lower court.

Reply Br. at 26.

I anticipate CAAF will focus on three issues during tomorrow’s oral argument: the source of the right to release under an inchoate CCA decision (constitutional, statutory, rule-based, or caselaw); the significance – if any – of Katso’s failure to request release or a confinement review; and whether the Government can deny an appellant confinement review with impunity so long as it wins reversal of the CCA’s decision.

Case Links:
• Prior CAAFlog case page
• AFCCA opinion (76 M.J. 704)
• Blog post: Katso returns to CAAF
• Appellant’s (A.F. Gov’t App. Div.) brief
• Appellee’s (Katso) answer
• Appellant’s reply brief
Blog post: Argument preview

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