CAAFlog » September 2015 Term » Howell v. United States

CAAF decided the certified Marine Corps case of Howell v. United States, 75 M.J. 386, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

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

Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page): Oral argument audio.

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Marine Corps case of Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page), on Wednesday, May 11, 2016, at 9:30 a.m. The case presents four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of a sexual assault conviction with a rehearing authorized. Howell was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

Howell complained, asserting that he was entitled to be paid as an E-6, and the military judge agreed, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

Read more »

In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.

Judge Ryan has recused herself from the case:

Notice of Recusal and Designation

Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264.  Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).

Recusals are rare at CAAF. I’m only aware of a few in recent history:

  • Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
  • Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
  • The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).

Last month, in this post, I reviewed the 4-4 en banc decision of the NMCCA on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015).

Last week the Judge Advocate General of the Navy certified the case to CAAF:

No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant.  Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?

WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?

WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE’S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?

IF A MEMBER’S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?

In an interesting decision on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (en banc) (link to slip op.), the Navy-Marine Corps CCA splits 4-4 (one judge did not participate) to grant only a small part of the relief requested by the Government.

Our #4 Military Justice Story of 2014 included discussion of the Marine Corps case of United States v. Howell, in which the appearance of unlawful command influence led to the reversal of a sexual assault conviction. The CCA authorized a rehearing, and the accused was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, the accused was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

The accused complained about his pay, asserting that he was entitled to be paid as an E-6, and the military judge agreed. The military judge then found that the Government’s actions constituted illegal pretrial punishment in violation of Article 13, and he ordered that the accused receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate beginning on the date the original findings and sentence were set aside.

The trial proceeded and the accused was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in approximately 11 months of confinement credit to the accused. The Government then sought extraordinary relief from the CCA, prior to the convening authority taking action in the case.

The CCA’s lead opinion, authored by Judge Marks, finds that the military judge erred only in setting the start date for the credit as the date when the findings were first set aside, and that the credit shouldn’t begin until the date accused was released from confinement. However, Judge Marks concludes that the military judge “did not usurp his judicial power by ruling on SSgt Howell’s complaint of illegal pretrial pay deprivation.” Slip op. at 14.

The dissenting opinion, authored by Senior Judge Brubaker, would reverse the military judge entirely:

I would have found it improper to grant any credit here. Unlike cases relied on by the majority, this case does not implicate punitive actions by command or detention officials – or any other government officials. It presents, instead, a pure pay entitlement question. In my view, the military judge misused Article 13 to litigate and remedy the correctness of an agency’s good faith pay entitlement determination.

Slip op. at 16. Senior Judge Brubaker concludes that “such disputes belong in Congressionally-designated Article III courts.” Slip op. at 17.

The accused filed a writ-appeal petition at CAAF on January 19, 2016.