CAAF will hear oral argument in the Air Force case of United States v. Mooney, No. 17-0405/AF (CAAFlog case page), on Wednesday, January 10, 2018, after the argument in Carpenter. A single issue questions whether court-martial sentences may run consecutively (one-after-another) with federal sentences:
Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.
Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.
Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.
The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court.
The Air Force CCA approved this action in a published decision, concluding that:
Given the support for this disposition in DoD and Air Force regulatory guidance and the absence of conflicting authorities within the UCMJ, we find the convening authority’s action was sufficient to toll the effective date of confinement under Article 57(b), UCMJ, and thereby require Appellant’s military sentence to confinement be served consecutively with his federal sentence.
United States v. Mooney, 76 M.J. 545, 549-550 (A.F. Ct. Crim. App. Mar. 21, 2017) (discussed here).
The UCMJ, however, does not expressly allow consecutive sentences where a federal civil conviction is followed by a court-martial conviction. But the Code does address all other possible scenarios, permitting consecutive sentences where a court-martial conviction is followed by a civil conviction (Article 14), and where there is a court-martial sentence and one adjudged by a state or foreign court (Article 57a). The Air Force CCA interpreted that silence as a grant of discretion. 76 M.J. at 548.
CAAF granted review to determine if that is correct.
Mooney’s brief focuses on the argument that the UCMJ contains a comprehensive scheme for the execution of sentences, and the absence of authorization for consecutive sentences in a case like this means they are not authorized:
The UCMJ sets forth a comprehensive statutory scheme that provides for the interruption, deferment, and suspension of sentences adjudged at courts-martial. See Articles 14(b), 57a, 60, UCMJ, 10 U.S.C. §§ 814(b), 857a, 860 (2012). Absent these express, statutory exceptions, the plain language of Article 57, UCMJ, commands that a sentence to confinement begins to run on the date it is adjudged. 10 U.S.C. § 857 (2012).
App. Br. at 6. The Air Force Government Appellate Division’s response is twofold.
First, the Government Division argues that the UCMJ scheme is not comprehensive:
The relevant UCMJ Articles are silent about preceding federal court sentences, and each have a specific purpose they were enacted to achieve. Most notably, the plain language of Article 57a(b), UCMJ is silent about the effect of a federal court sentence on a court-martial sentence. As such, Article 57a(b), UCMJ does not preclude subsequent court-martial sentences from running consecutively to prior federal court sentences. Therefore, this Court’s prior holding should control, and service regulations should sufficiently defer Appellant’s confinement for purposes of Article 57(b), UCMJ.
Gov’t Div. Br. at 16 (formatting in original).
Second, the Government Division argues waiver:
Appellant waived this issue on appeal. Appellant entered into a pretrial agreement in which he agreed to “waive all motions which may be waived under the Rules for Court-Martial.” (J.A. at 60.) Appellant likewise told the military judge during his plea colloquy that he understood by this term that he was “giv[ing] up the right to make any motion, which by law, is given up . . . [by] plead[ing] guilty.” (J.A. at 23.) This is the very type of “non-jurisdictional,” antecedent complaint that an Appellant waives in an unconditional guilty plea. United States v. Lee, 73 M.J. 166, 170 (C.AA.F. 2014). As such, Appellant has given up the opportunity to complain about his serving consecutive sentences on appeal.
Gov’t Div. Br. at 8-9.
Waiver mania was the #3 Military Justice Story of 2017 and it’s definitely on display here. “[A] valid waiver leaves no error to correct on appeal.” United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (CAAFlog case page). But if Article 57 requires the sentence to run concurrently and the convening authority’s action was void ab initio (from the beginning) – as the granted issue questions – then nothing in Mooney’s plea or plea agreement changed the law.
The Government Division’s brief does argue that Mooney’s conduct (or – more properly – that of his defense counsel) suggest that he believed that the two years agreed to in the plea agreement would run consecutively with (after) the six years adjudged by the District Court, but that doesn’t change Article 57. It’s like the impossible bargain from United States v. Juckniewitz, No. 201200441 (N.M. Ct. Crim. App. Feb. 28, 2013) (discussed here), and the forbidden waiver from United States v. Miceli, No. 201700062 (N.M. Ct. Crim. App. Aug. 31, 2017) (discussed here). In fact, it’s exactly like Miceli where even though the appellant and the convening authority (and the trial counsel, defense counsel, military judge, SJA, and appellate counsel) didn’t notice (or care) that the pretrial agreement required a forbidden waiver of forfeitures in excess of six months, the convening authority still didn’t have the power to do it.
Mooney’s reply brief focuses on what the UCMJ says and doesn’t say:
While the UCMJ declines to give a CA the power to interrupt or defer a court-martial sentence to confinement for an earlier sentence in federal district court, it is anything but silent about when sentences to confinement begin to run: the date adjudged. 10 U.S.C. § 857(b).
Reply Br. at 5.
Legislative gaps aren’t hard to find – or forge – with the right set of facts. Mooney presents what seems to be a quintessential question of policy: should it be possible to execute a court-martial sentence consecutive with a federal sentence? The UCMJ doesn’t answer that question. The real issue for next week’s oral argument seems to be whether the CCA and CAAF should.