CAAFlog » October 2017 Term » United States v. Kelly

CAAF decided the Army case of United States v. Kelly, 77 M.J. 404, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).

“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

The court later specified a second issue involving improper argument by the trial counsel:

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Burris, No.17-0605/AR (CAAFlog case page): Oral argument audio.

United States v. Barry, No. 17-0162/NA (CAAFlog case page)Oral argument audio.

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page): Oral argument audio.

United States v. Kelly, No.17-0559/AR (CAAFlog case page): Oral argument audio.

A court-martial panel with enlisted representation convicted Sergeant Kelly, contrary to his pleas, of sexually assaulting a fellow noncommissioned officer who had become inebriated in his home after a night of drinking and playing board games. The members sentenced Sergeant Kelly to a dishonorable discharge, confinement for a year, total forfeitures of pay and allowances, and reduction to the lowest enlisted grade. That sentence was adjudged after the military trial judge instructed the panel that a dishonorable discharge was a mandatory punishment for Sergeant Kelly’s offense.

Before the Army Court, among other errors, Kelly asserted that the prosecutor’s argument (asserting that his in-court testimony was false) was improper, and that his sentence to a dishonorable discharge was inappropriately severe. In a published decision, the Army Court found that defense counsel’s failure to object to the prosecutor’s argument waived (rather than forfeited) that issue. As to Kelly’s request that his punitive discharge be set aside, the court held that it lacked the authority to even consider disturbing the mandatory minimum punitive discharge in a sexual assault case. United States v. Kelly, 76 M.J. 793 (A.C.C.A. 2017) (discussed here and discussed here).

From this background, on 22 March 2018 at 9:30 a.m., CAAF will hear oral argument on two issues. The first issue was raised by Kelly in the supplement to his petition for grant of review (discussed here):

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

On Kelly’s urging (see the footnote in Kelly’s Reply at *2), the Court specified the second issue itself (discussed here):

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

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The Army CCA’s published en banc opinion in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.

But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.

Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, 76 M.J. 758, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).

The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:

R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.

Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:

Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.

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