CAAFlog » October 2017 Term » United States v. Mooney

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

United States v. Carpenter, No. 0476/AF (CAAFlog case page): Oral argument audio. (link fixed)

United States v. Mooney, No. 17-0405/AF (CAAFlog case page): Oral argument audio.

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.

Read more »

On Tuesday CAAF granted review in this Air Force case:

No. 17-0405/AF. U.S. v. Sean C. Mooney. CCA 38929. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and is published at 76 M.J. 545. The appellant pleaded guilty before a federal district court and at a general court-martial to separate offenses all related to a sexual relationship with a 14-year-old. The federal plea (and sentence of imprisonment for six years) came first, and the court-martial plea (and approved sentence including confinement for two years) came second. The plea agreements made no provisions for whether those sentences would run concurrently or consecutively, but the convening authority ordered that they run consecutively (first the civil, then the court-martial). The Air Force CCA approved this 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.

76 M.J. at 549-550, slip op. at 7-8. The regulatory guidance is DoD 1325.7-M and Air Force Regulation 125-30, which suggest that court-martial sentences should be served consecutively with civil court sentences. The UCMJ, however, does not include a provision allowing consecutive sentences under the circumstances of this case (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:

In the case sub judice, Appellant’s sentence to confinement by a federal district court is not covered by the provisions of Article 57a. As such, we must determine whether the absence of guidance restricted the convening authority’s discretion in directing the running of Appellant’s military sentence to confinement. We hold, contrary to Appellant’s argument, that it did not.

76 M.J. at 548, slip op. at 8.