When does one apple equal 30 oranges, 45 bananas, and 3 bunches of 1,500 grapes? When “the specific circumstances of this case” permit such a conclusion. So finds CAAF, in a per curiam opinion that affirms the NMCCA’s decision in United States v. Altier, No. 12-0496/NA, 71 M.J. 427 (C.A.A.F. Dec. 19, 2012) (CAAFlog case page) (link to slip op.).

The Appellant in Altier was convicted in 2010, by a special court-martial composed of members with enlisted representation, of one specification of fraternization and one specification of sexual harassment, both in violation of Article 92. He was sentenced to just a bad-conduct discharge. However, the NMCCA set-aside the sentence and authorized a sentencing rehearing because of improper sentencing instructions. That rehearing occurred in July, 2011, before a military judge alone, and the Appellant was sentenced to confinement for 30 days, reduction to pay grade E-5, restriction to base limits with hard-labor for 45 days, and forfeiture of $1,500.00 pay per month for three months. But no punitive discharge.

The Appellant promptly sought appellate relief to avoid execution of the confinement, and was granted a writ of prohibition by the NMCCA staying execution of the new sentence in order to allow the court to first determine if the new sentence was “in excess of or more severe than” the original sentence. Article 63, UCMJ, states that “upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…,” and the Appellant argued that the confinement, restriction, hard-labor, and forfeitures in the second sentence were in excess of or more severe than the punitive discharge (with automatic reduction under Article 58a) but no confinement, no restriction, no hard-labor, and no forfeitures in the first sentence.

Crazy talk, right? And a three-judge panel of the NMCCA denied relief (in a 2-1 split), finding that “[u]nder the circumstances of this case” the second sentence was not in excess of or more severe than the first sentence. CAAF granted review, and on December 19, 2012, in a per curiam opinion, it agreed with the NMCCA, and the court lifted the stay of execution of the sentence.

CAAF’s discussion is both short and unenlightening, but there are two lessons that can be drawn from the opinion. The first is that none of the judges at CAAF have any significant interest in establishing a formula for calculating equivalent sentences for rehearings:

Our cases regarding Article 63 reflect both the obligation to give meaning and effect to the statutory limitation against a sentence that is “in excess of or more severe” than the original sentence, and an understanding that the application of the Article 63 limitation in any case cannot be reduced to a specific formula.

Slip op. at 4. Nevermind that the Manual for Courts-Martial used to include a Table of Equivalent Punishments (though it didn’t establish any equivalent for a discharge) and that the NMCCA and CAAF have both used this table in the past (see United States v. Edwards, 54 M.J. 761, 763 (N-M.Ct.Crim.App. 2000) (citing United States v. Gammons, 51 M.J. 169, 183-184 (C.A.A.F. 1999)). When it comes to Article 63, equivalents are out.

The second lesson requires reading between the sparse lines of the court’s opinion:

…Appellant received a sentence containing terms similar in effect, although not identical to, the types of punishment that could be imposed in a non-judicial setting under Article 15, UCMJ. Under the specific circumstances of this case, we conclude that the Court of Criminal Appeals did not err under Article 63 in affirming a sentence adjudged by the court-martial and approved by the convening authority.

Slip op. at 5. Those “specific circumstances” include the fact that during the sentencing rehearing the Appellant’s counsel first asked for a sentence of “no further punishment,” but then argued that if  “a ‘message’ was necessary, then [the judge] should impose a sentence no greater than the punishment ‘that could be imposed at NJP.’” Slip op. at 2. CAAF doesn’t explicitly state that this Appellant got what he asked for, but that familiar message is clear. See United States v. Carter, 45 M.J. 168 (C.A.A.F. 1996) (“This case and its outcome can be summarized by the old adage, ‘Watch what you ask for, you may get it.’”)).

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CAAF today issued this brief per curiam opinion affirming NMCCA’s decision in United States v. Altier, No. 12-0496/NA.  CAAF also lifted the stay of execution of the sentence it had previously issued, meaning that Altier can now be thrown in the brig for 30 days.

I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:

CAAF Arguments:

• Wednesday, November 7:
  • United States v. Irizarry, No. 12-0451/AF

• Tuesday, November 13:
  • United States v. Goings, No. 11-0547/AR
  • United States v. Altier, No. 12-0496/NA
  • United States v. Hutchins, No. 12-0408/MC

• Tuesday, November 27:
  • United States v. Cote, No. 12-0522/AF
  • United States v. Caldwell, No. 12-0353/MC

NMCCA Arguments:

• Thursday, November 29:
  • United States v. Moreno

Petty Officer First Class (E-6) Altier was convicted in 2010, by a special court-martial composed of members with enlisted representation, of one specification of fraternization and one specification of sexual harassment, both in violation of Article 92, and sentenced to a bad-conduct discharge. However, the NMCCA set-aside the sentence and authorized a rehearing because “improper oral and written [sentencing] instructions were given to the members, and the sentencing worksheet contained even further mistakes.” United States v. Altier, No. 201000361, slip op. at 8 (N-M Ct. Crim. App., May 26, 2011) (Altier I). A sentence rehearing occurred in July 2011 before a military judge alone, and he sentenced Petty Officer Altier to confinement for 30 days, reduction to pay grade E-5, restriction to base limits with hard-labor for 45 days, and forfeiture of $1,500.00 pay per month for three months, but no punitive discharge.

Execution of the sentence to confinement was then stayed pending further review by the NMCCA (which kept jurisdiction from the original sentence). The CCA had to reconcile the prohibition of Article 63 and Rule for Courts-Martial 810 that the approved sentence after a rehearing may not be “in excess of or more severe than” the approved sentence after the original hearing, with the fact that the approved sentence in this rehearing included everything that the original sentence did not. Well, everything but a reprimand.

No problem, said the majority of a three-judge panel:

Under the circumstances of this case, we do not find confinement for 30 days, restriction with hard labor without confinement for 45 days, reduction to pay grade E-1, and forfeiture of $1500.00 pay per month for three months to be in excess of or more severe than a bad-conduct discharge.
. . .
Recognizing that this is a case of first impression and that the appellant is likely to petition the CAAF for review of our decision, the stay we issued on execution of the sentence approved by the CA will remain in effect until the CAAF acts on such a petition, or the time for filing a petition with that court expires, or the appellant informs the Government that he will not appeal this court’s decision.

United States v. Altier, No. 201000361, slip op. at 5 (N-M Ct. Crim. App., April 30, 2012) (Altier II). CAAF then granted review of a single issue: “Whether Appellant’s sentence violates Article 63, UCMJ, and R.C.M. 810(d) because it is in excess of and more severe than his original approved court-martial sentence.”

The Appellant’s brief lays out the clear case. The first sentence to just a bad-conduct discharge “included zero days of confinement and zero days of restriction [with hard-labor],” and the second sentence included more than zero days of confinement and more than zero days of restriction with hard-labor (the reduction and forfeitures are a wrinkle because the approved punitive discharge implicates automatic reduction to E-1, and the use of appellate leave put the Appellant in a no-pay-due status). Appellant’s Br. at 6. But the brief quickly moves from the mathematical argument to the metaphysical argument: “it is not possible to meaningfully compare a punitive discharge to a sentence to confinement to determine which of the two sentences is worse.” Appellant’s Br. at 7. The brief discusses some of the difficulties faced by the Appellant in finding employment and moving on with his life the years since his trial (though the brief omits discussion of the fact that the Appellant is still on active duty, with no adjudged discharge, and isn’t just entitled to current pay and allowances – he is also entitled to back pay and allowances for his time on involuntary appellate leave!).

The Appellant’s brief also predicts that the Government will attempt to analogize this case to one where a punitive discharge is commuted to a term of confinement, citing CAAF’s 1996 decision in United States v. Carter, 45 M.J. 168. The appellant in Carter was an Air Force Master Sergeant with 24 years of active duty service who was convicted by a general court-martial of (primarily) drug offenses. His sentence included confinement for a year and a bad-conduct discharge, forfeiting his entitlement to a military retirement. In clemency, he requested commutation of the discharge to an unspecified period of confinement. The convening authority granted his request, and converted the discharge to an additional 24 months confinement and 35 months forfeitures. On review, CAAF approved the conversion in an opinion that begins with the following sentence: “This case and its outcome can be summarized by the old adage, ‘Watch what you ask for, you may get it.’” Carter, 45 M.J. at 168. The Appellant’s brief in Altier distinguishes this case from Carter on the basis of this request.

In it’s response, the Government embraces the Appellant’s challenge to analogize this case to Carter, arguing that “while sentence commutation is different from sentence comparison, lessons can be drawn from that context which are informative to the case at Bar. Given the finality of the punitive discharge, particularly in view of the transitory nature of 30 days confinement and 45 days hard labor and in light of the commutation case law, it is clear that Appellant’s new sentence is not more severe than that previously imposed.” Gov’t Br. at 9. This argument is a kind of emotional balancing test, as the Government pragmatically compares the practical effects of a bad-conduct discharge with those of a short period of loss of liberty. But then the Government makes an incredible argument:

[W]hile a discharge may be “apples” and restraint on liberty may be “oranges,” it is untrue to suggest that the two cannot be compared – setting aside the statutory requirement to do so, the mere fact that one notes differences between the two in and of itself implies that a comparison has, in fact, occurred.

I don’t think I’ve ever seen a legal brief deliberately call for an apples-to-oranges comparison before this… But the Government’s brief does something even stranger – it makes no argument that the second sentence is not “in excess of” the first sentence; a seemingly case-dispositive concession.

The Government’s argument is that:

ANY SENTENCE MAY BE APPROVED ON REHEARING AS LONG AS IT IS NOT MORE SEVERE THAN THE PREVIOUSLY APPROVED SENTENCE. APPELLANT’S SENTENCE ON REHEARING WAS NOT MORE SEVERE THAN THE ORIGINALLY APPROVED SENTENCE

Gov’t Br. at 4 (emphasis added). But the prohibition in Article 63 and R.C.M. 810 isn’t just against a sentence that is “more severe”; both provisions state:

. . . sentence in excess of or more severe than . . .

However, the Government’s brief contains the word “excess” a grand total of six times:

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Article 63, UCMJ, states:

Upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…

Rule for Courts-Martial 810 states:

offenses on which a rehearing, new trial, or other trial has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory.

The purpose of these provisions is to enforce Congressional intent that “action by a board of review is always taken on behalf of an accused and in his interest. Literally he can never be prejudiced by this appellate review—for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. … the accused can never be the subject of final action which is more to his detriment than the original action of the court-martial which heard his case.” United States v. Zimmerman, 6 C.M.R. 12, 20 (C.M.A., 1952); see also United States v. Dean, 23 C.M.R. 185, 188 (C.M.A., 1957) (rejecting the Trono rule of federal practice “that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been”).

As an aside, military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.

Last year, the N-MCCA set-aside the sentence – consisting of only a bad-conduct discharge – in United States v. Altier, No. 201000361 (N-M Ct. Crim. App., May 26, 2011), because “improper oral and written instructions were given to the members, and the sentencing worksheet contained even further mistakes.” Slip op. at 8. A sentence rehearing was conducted, resulting in an approved sentence that did not include a bad-conduct discharge, but did include confinement for 30 days, reduction to pay grade E-5, restriction to base limits, hard labor without confinement for 45 days, and forfeiture of $1,500.00 pay per month for three months. The appellant then sought and was granted a Writ of Prohibition to prevent the imposition of the confinement pending the CCA’s review of the lawfulness of the sentence (see, Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989) (Article 66 review is based on the original sentence)).

Last month, in an unpublished opinion, an NMCCA panel split 2-1 and affirmed that approved sentence as “not in excess of, or more severe than, the appellant’s original approved court-martial sentence,” despite the fact that it includes punishments that were not included in the original sentence. United States v. Altier, No. 201000361, slip op. at 3 (N-M Ct. Crim. App., April 30, 2012). Noting that CAAF “has held that there is no exact answer as to how many day of confinement ‘equal’ a bad conduct discharge,” the majority found that, under the circumstances of this case, it could affirm the sentence. Slip op. at 4-5.

However, in a dissenting opinion Senior Judge Perlak found it “impossible to articulate any legal standard by which to reliably compare the social sanction of a punitive discharge against the very basic physical and social consequences accompanying a loss of liberty.” Slip op. at 6. Instead, he compared the sentences head-to-head, and found only the reduction to E-5 permissible, because the original sentence of a bad-conduct discharge implicated automatic reduction to E-1 under Article 58a.

This case isn’t over, and I suspect we’ll see further action either from the NMCCA (en banc) or from CAAF.

In its recent unpublished opinion in U.S. v. Altier (available here), the N-MCCA set aside the sentence and authorized a sentence re-hearing because the court was not convinced that the members were aware of the maximum punishment for the offenses of which the accused was convicted. Edit: Altier was convicted at Special Court-Martial of sexual harassment and fraternization in violation of Art. 92, UCMJ.

The maximum punishment was the Special Court-Martial maximum, but the oral and written instructions from the military judge omitted mention of a punitive discharge, and the sentencing worksheet included punishments that were not authorized (such as confinement in excess of 1 year and a dishonorable discharge). Both counsel discussed a BCD in their sentencing argument (the trial counsel asked for it and the defense counsel acknowledged that it was available). The members sentenced the accused to a BCD.

The opinions doesn’t say, but I suspect that the court’s concern is that, in the absence of explicit clarification by the military judge, the members may have thought their sentence choice was somehow lenient when compared to the unauthorized options on the charge  sheet sentencing worksheet. What I find interesting in this case is that while the worksheet was wrong in a way that prejudiced the appellant, the military judge’s instructions were wrong in a way the benefited him, and the arguments of counsel were appropriate, the N-MCCA still set aside the sentence.