CAAF will hear oral argument in the Air Force case of United States v. Muller, No. 19-0230/AF (CAAFlog case page), on Tuesday, November 5, 2019, after the argument in Jessie. The court granted review of three issues involving the CCA’s review of a case that was returned to the convening authority because a prosecution exhibit was missing from the record of trial:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

After some delays, the convening authority ordered the military judge to complete a certificate of correction for the missing exhibit. A certificate of correction is a document used to correct a record of trial after authentication of the record by the military judge. See Article 54 (pre-2019); R.C.M. 1104(d), Manual for Courts-Martial (2016 ed.). The authentication process was changed to a certification process in the Military Justice Act of 2016 and the 2019 edition of the Manual for Courts-Martial. See Article 54 (2019); R.C.M. 1112(d), Manual for Courts-Martial (2019 ed.). The new process, however, retains the ability of a military judge to correct a record of trial.

The certificate of correction in Muller was completed and the record was returned to the CCA and the case re-docketed. At that point Muller’s appellate defense counsel sought to file a brief raising two assignments of error; one claiming unlawful command influence in the certificate of correction process and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration.

CAAF will review whether the CCA was wrong to reject Muller’s brief and – in an issue apparently raised by the Government Division and that CAAF granted review of without requiring certification by the Judge Advocate General – whether the CCA could have simply attached the missing exhibit to the record without returning it to the convening authority for correction.

Muller’s brief begins with a lengthy and somewhat dry analysis of old Rule 15.5 of the Air Force CCA’s Rules of Practice and Procedure (2017). That rule stated:

Rule 15.5 Supplemental Filings.
Supplemental filings must be submitted by motion for leave to file. If the motion is granted, the opposing party may file a response within 30 days. When a case returned by the Court to TJAG for remand to the convening authority for anything other than a rehearing is again before the Court and appellate counsel previously filed an initial brief and assignment(s) of error, appellate defense counsel shall within 10 calendar days of re-docketing either request leave to file a supplemental pleading under Rule 23 or inform this Court that the appellant does not wish to file additional pleadings. When a rehearing was conducted, the time for filing briefs and answers will be per Rule 15(b).

The current version of the Air Force CCA’s rules doesn’t contain a similar rule.

Muller’s brief notes that Article 66(f) (pre-2019; now Article 66(h)) required “uniform rules of procedure for the Courts of Criminal Appeals,” App. Br. at 13, and that the Army, Coast Guard, and Navy-Marine Corps CCAs didn’t have such a short time limit for briefs in cases remanded to the convening authority, App. Br. at 15-16. Furthermore, there were (and still are) joint rules that permit 60 days for filing in this situation. This, however, isn’t CAAF’s first review of a unique rule of the Air Force CCA. Specifically, in the Air Force case of United States v. Gilley, 59 M.J. 245 (C.A.A.F. 2004), CAAF considered a rule that required a brief be filed within seven days of re-docketing after a remand. The court invalidated the rule, because:

we interpret Article 66(f) to require identical rules among all Courts of Criminal Appeals regarding any course of action an appellant may take in a case before such court – which includes filing a brief. Article 66(f) therefore requires the Courts of Criminal Appeals to enforce identical deadlines for filing briefs.

59 M.J. at 247 (emphasis in original). With such an unambiguous precedent, it’s strange that the CCA ended up with another unique rule, a point not missed in Muller’s brief. App. Br. at 24.

An amicus curiae brief filed by the Navy-Marine Corps Appellate Defense Division emphasizes that not only does the Air Force CCA have a unique rule, but the Navy-Marine Corps has one as well. It provides this table:

Amicus Br. at 4. “Under Gilley, those [AFCCA and NMCCA] rules are invalid.” Amicus Br. at 4.

The Government Division responds by reading the old Air Force rule narrowly. The rule didn’t require that a brief be filed within 10 days of re-docketing, claims the Government Division; it merely required that an appellant request to file the brief within 10 days of re-docketing. Gov’t Div. Br. at 10. Muller’s reply brief, however, reads the rule even more finely:

Rule 15.5 states: “Supplemental filings must be submitted by motion for leave to file.” (JA at 122.) A plain reading of this provision thus indicates that an appellant could not normally submit a supplemental pleading after a motion for leave to file, as the government’s answer suggests. (Gov’t Br. at 16). Rather, appellants were required to submit supplemental filings by a motion for leave to file, meaning through.

Reply Br. at 10 (emphases in original).

Yet the Government Division also raises the possibility that the CCA rejected Muller’s brief for a reason unrelated to the old rule:

In sum, the lower court’s decisions did not preclude Appellant from timely raising supplemental errors. Rather, as discussed above, its denials of Appellant’s motions were very likely based on a failure to demonstrate relevance as required by Rule 23.3(b) and Shotter, 30 C.M.R. at 285. And even if there were error, AFCCA correctly found that none were materially prejudicial to Appellant’s substantial rights after conducting a full review of the record of trial as required by Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c) (2016). (JA at 1-2.)

Gov’t Div. Br. at 22 (emphasis added). That the Government Division must speculate (“very likely based”) about why the CCA actually rejected the brief is a problem, but it doesn’t prevent the Division from concluding that CAAF “should find Appellant’s post-remand motions were properly denied and affirm the findings and sentence.” Gov’t Div. at 22. That conclusion seems to be based on the Government Division’s belief that the CCA conducted a plenary review irrespective of any brief, proven by the fact that the CCA affirmed the findings and sentence:

Rather, the record demonstrates AFCCA properly conducted its Article 66(c) review. As the granting authority, AFCCA was undoubtedly aware of the two enlargements of time granted requested by the United States. But despite the two delays, AFCCA found that “[t]he approved findings and sentence are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred.” (JA at 1-2.) If relief were warranted by any delays, the lower court was required to grant it pursuant to Tardif. It did not. Therefore, it follows that AFCCA found no delay warranting sentencing relief.

Gov’t Div. Br. at 20-21. Put differently, because the CCA didn’t grant relief, there couldn’t possibly be any relief to grant. But by that logic, why permit briefs in any case?

The Government Division also invites CAAF to outright reject Muller’s claims of unlawful command influence and unreasonable post-trial delay on the basis that they lack merit. That argument makes some sense for the influence claim, but the delay claim is predicated in part on the possibility of relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). In Tardif CAAF recognized that a CCA might grant relief for post-trial delays even without a finding of prejudice. Tardif relief is rare, but it’s also the exclusive domain of the courts of criminal appeals (because they – not CAAF – review for sentence appropriateness). Nevertheless, the Government Division asks CAAF to decide the issue itself.

Muller replies with reasons why CAAF shouldn’t do that:

All told, it took the government 52 days to move to attach to the record a document it already possessed. This is a facially unreasonable delay. So, too, is the 25 days it took the convening authority to direct the military judge to prepare a certificate of correction. Accordingly, this Court should remand the case so that the Air Force Court can use its fact-finding powers to properly weigh the government’s “reasons for the delay.” See Barker v. Wingo, 407 U.S. 514, 530 (1972). Remanding the case will also allow the Air Force Court to determine if A1C Muller was prejudiced by any unreasonable delays or, if not, whether he should receive Tardif relief; a remedy not otherwise available from this Court.

Reply Br. at 18.

The third granted issue questions whether it was really necessary for the CCA to remand the case for correction. Muller’s brief observes that “the government asked this Court to determine whether a CCA must require certificates of correction to be accomplished,” App. Br. at 20, and it’s strange that CAAF would do so without the issue being certified by the Judge Advocate General. Muller’s brief also argues that that the issue:

is a question whose answer is unnecessary to the resolution of this case. It is indisputable that the government failed to include a prosecution exhibit in A1C Muller’s record of trial. . . . The Air Force Court subsequently accepted the government’s corrections and attached the missing exhibit to the record of trial. (JA at 56.) Accordingly, there is no controversy for this Court to decide and to answer the presented question would constitute an advisory opinion.

App. Br. at 39. Nevertheless, Muller also argues that simply attaching missing materials to a record is contrary to the rule promulgated by the President, contrary to the Article 54 requirement of authentication by a military judge (changed to certification by a court-reporter in 2019), and would deny necessary procedural safeguards. App. Br. at 40-47.

The Government Division responds by asserting that the necessity of remand for correction “is interwoven with the resolution of Appellant’s complaint alleging excessive post-trial delay,” because the Government Division attempted to correct the record without the delay-ridden remand. Gov’t Div. Br. at 31 (marks omitted). That, however, doesn’t explain why “it took the government 52 days to move to attach to the record a document it already possessed,” and an additional 25 days for the convening authority to order the correction. Reply Br. at 18.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview

One Response to “Argument Preview: A unique CCA rule, a rejected brief, and a potential advisory opinion, in United States v. Muller, No. 19-0230/AF”

  1. Dew_Process says:

    The basic problem here is more fundamental. There is no “rules enabling” statute for the individual Service CCA’s. The sole provision is in Art. 66(h), UCMJ, which is the provision for joint “uniform rules of procedure.” As an Article I, court, a CCA does not have the “judicial power” of Article III, courts. While CCA’s aren’t precluded from having administrative rules, those rules lack the force of law and cannot imho be enforced to the detriment of an appellant.
    Compare the express rules enabling clause in Art. 144, UCMJ, for CAAF:

    The United States Court of Appeals for the Armed Forces may prescribe its rules of procedure . . . .

    That is an express grant of authority to that court – something not granted to the Service CCA’s, no doubt because of the Congressional intent that any CCA Rules be “uniform.”

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