Opinion Analysis: The court-martial sentence must run concurrently with the federal sentence, in United States v. Mooney
CAAF decided the Air Force case of United States v. Mooney, __ M.J. __, No. 17-0405/AF (CAAFlog case page) (link to slip op.), on March 12, 2018. The court concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.
Judge Sparks writes for a unanimous court.
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 affirmed in a published decision, and CAAF granted review to determine:
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.
In yesterday’s decision CAAF rejects the argument that Mooney’s guilty plea waived this issue and it interprets Article 57a (10 U.S.C. § 857a) to hold that while “Congress expressly provided for deferment when a member is in custody of a state or foreign country, they intended to exclude when [as in this case] a member is in custody of the federal government.” Slip op. at 9.
Judge Sparks begins by addressing waiver (the #3 Military Justice Story of 2017):
we must consider whether Appellant has waived review of this issue. The Government contends that Appellant’s unconditional guilty plea and his pretrial agreement, stating he would “waive all motions which may be waived under the Rules for Courts-Martial” precludes him from challenging the convening authority’s action on appeal.
Slip op. at 4. In my argument preview I suggested that an accused can’t waive something that a convening authority has no power to do. But CAAF rejects waiver fora different reason; because the defense actually objected at the first possible opportunity:
This issue arose during the SJA’s post-trial recommendation and the convening authority’s action. We therefore do not find Bradley applicable because whether a convening authority has the power to order a consecutive sentence is not a pretrial defect. Furthermore, this issue is not a factual issue relating to Appellant’s guilt. Additionally, because this issue did not arise until post-trial, there was no motion to be made during the court-martial. In fact, Appellant affirmatively objected at the earliest opportunity; when the SJA first proposed it to the convening authority in the addendum to the SJA’s post-trial recommendation. Mooney, 76 M.J. at 547. For these reasons, waiver does not apply and we may reach the merits of the granted issue.
Slip op. at 4.
Turning to the merits, Judge Sparks explains that a court-martial sentence to confinement begins to run on the date it is adjudged unless it is delayed under a specific grant of authority to do so:
On its face, Article 57(b), UCMJ, expressly requires that the sentence of a court-martial to confinement runs from the date of adjudication. Thus, once confinement is adjudged, only if it is then “suspended or deferred” does the confinement not run concurrently. Additionally, though not expressly set out as an exception under Article 57(b), UCMJ, a previously adjudged military sentence to confinement may be interrupted pending proceedings in a “civil tribunal” under Article 14(b), UCMJ, 10 U.S.C. § 814(b).
Slip op. at 5. The question for CAAF, therefore, is “whether the convening authority was permitted to interrupt or defer Appellant’s military sentence to confinement,” until after Mooney completed his federal civil sentence. Slip op. at 6. CAAF considers three possible sources of that power: Article 14(b), Article 57a(a) and Article 57a(b).
First, Article 14(b) applies where “an accused was tried, sentenced, and serving the adjudged military confinement prior to his release to the civilian authorities to face trial by them. In this case, the reverse is true. . . ” Slip op. at 6. Accordingly, Article 14(b) does not apply.
Second, Article 57a(a) applies when an accused requests deferment. Mooney did not make such a request, and so Article 57a(a) also does not apply. Slip op. at 6-7.
Finally, Article 57a(b) applies in situations involving a state or foreign government. This case, however, involves the federal government. Applying “the cannon of statutory construction expressio unius est exclusio alterius (the inclusion of one is the exclusion of others),” Judge Sparks explains that “it follows that when Congress expressly provided for deferment when a member is in custody of a state or foreign country, they intended to exclude when a member is in custody of the federal government.” Slip op. at 9. Accordingly, 57a(b) doesn’t apply.
Judge Sparks concludes:
In light of the comprehensive statutory scheme for deferring and interrupting sentences under Articles 14, 57 and 57a, UCMJ, the convening authority was not authorized to order a consecutive sentence where a federal conviction is followed by a court-martial conviction. Accordingly, pursuant to Article 57(b), UCMJ, Appellant’s sentence to confinement began running on the date it was adjudged.
Slip op. at 9. A footnote doubts the rationality of this policy but acknowledges that it is the one Congress adopted in the statutory scheme:
It is not altogether clear why deferment under Article 57a(b), UCMJ, is unavailable when an accused is in the custody of the federal government, or why interruption does not flow in the opposite direction for purposes of Article 14, UCMJ. But regardless of how opaque the rationale for a statute might be, the plain language meaning must be enforced and is rebutted only in “rare and exceptional circumstances.” Ardestani v. I.N.S., 502 U.S. 129, 135 (1991) (internal quotation marks omitted) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
Slip op. at 9 n.4.
• AFCCA decision
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis