CAAF decided the Air Force case of United States v. Mooney, 77 M.J. 252, 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.

Case Links:
• 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

7 Responses to “Opinion Analysis: The court-martial sentence must run concurrently with the federal sentence, in United States v. Mooney”

  1. Tami a/k/a Princess Leia says:

    And now there’s no authority to defer confinement in sex crime cases.  Way to go Congress!

  2. k fischer says:

    Initially, I inferred in a previous post, that the SJA’s office got together to ensure that Mooney serve a minimum of 9 years and they were being unfair to Mooney.  They split the child porn charge in Federal and then tried the sex abuse of a minor charge at Court-martial with this deal for two years and wanted it to run consecutively, so he would serve 9 years in order to guarantee him going to jail for 10 years.
    But, after looking up the sentencing guidelines for 18 U.S.C. 2241 here, I see that Mooney would have received 10 – 15 years in Federal Court for the offense.  So, perhaps the SJA’s office was trying to shoot Mooney a solid by giving the offense with the higher sentence at a Court-martial to limit his confinement on this offense to two years, so he only served 8 (6 + 2), instead of 16-21 years.
    If all the charges were tried at a GCM, do you think he would have been sentenced to more than 45 months?  Maybe, maybe not.  How much more would the MJ have sentenced him to above the 45 month mark for having nude pictures of this 14 year old on his phone that she sent to him by text?
    So, now are SJA offices going to allow the SAUSA to prosecute in Federal Court, so they can get the 9 years they wanted by getting the accused sentenced to 16-21?  Maybe.
    But, kudos to C.A.A.F. for imposing a simple statutory construction analysis, which provides clear guidance on this issue, even though it results in Mooney not serving the 2 years for his Court-martial conviction.   Tami, there is authority to defer confinement when there is a state or foreign conviction.  I think this holding only stands for the proposition that a convening authority is not authorized by statute to defer confinement for the purposes of the Court-martial sentence to run consecutive to a Federal sentence.

  3. k fischer says:

    9 years and 10 years in the first paragraph and the 9 years in the fourth paragraph should be “8 years”, i.e. 72 months federal plus 2 years GCM.

  4. Tami a/k/a Princess Leia says:

    K fischer,
    You noted in an earlier post on this case that the rationale for failing to mention the federal government was because it was the same sovereign.  I think you’re right.  We turn you over to the state or foreign government for trial, we are turning you over to a different sovereign, so yes, we can defer. But when we are handing you over to a different arm of the same sovereign, we don’t get to lengthen the sentence for our screw up.

  5. Zachary D Spilman says:

    What makes you say that there is no authority to defer confinement in sex crime cases, Tami? R.C.M. 1101(c)  is unchanged in E.O. 13825, and the future R.C.M. 1103 does not limit the deferment power based on the charges. 

    My read is that there is just as much authority to defer confinement in sex cases (and any other kind of case) as there ever was. 

  6. Tami a/k/a Princess Leia says:

    Zachary Spilman, I was thinking about Article 60.  Obviously my bad, since Article 60 doesn’t apply to deferments!

  7. K fischer says:

    So now all the SJA has to do is send the case to the SAUSA and the accused will face possibly decades in jail rather than less than a decade.  I wonder if the MJ was persuaded to reduce his sentence based on the possibility of the consecutive sentence as argued by the DC?  Then DC says in 1105’s it’s a no go based on the statute.  Of course this really had no impact since he didn’t beat the deal.
    I had a one month cap on a drug case at a BCD where I argued that if the MJ wanted to “send a message” as suggested by the TC, then sentence him to 12 months confinement, but don’t give him a punitive discharge and ruin his life.  I said that when Soldiers heard that the judge would sentence future drug users and dealers to 12 months confinement, that would be much more effective than kicking them out.  I think my guy was barely 18 at the time of his offenses.
    Judge came back with the 12 months and no kick.  My client had spent 2 weeks in pretrial, so when the MJ saw the quantum, he announced that it looked like he would be spending another week and a half in jail before he was released back to his unit.  It is very important that if anyone tries this, they don’t say their client will sit in jail for twelve months because you know he won’t based on the quantum.  That would be misleading the Court.  You have to tie it to future offenders will Bear that the going rate is 12 months and that would great deterrence.
    So why is this relevant to Mooney?  Well, I fought hard for my one client, but do you think I ever got a one month cap with no conditions on it being tied to a punitive discharge again?  No.  Just like future Mooneys aren’t going to get such a sweetheart deal which guys previous to him probably got.  And this is nothing against the DC.  He or she did a great job in negotiating that deal.