CAAFlog » September 2015 Term » United States v. Chin

Disclosure: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin. 

CAAF decided the certified Air Force case of United States v. Chin, 75 M.J. 220, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.

Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.

The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with the following issue:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.

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Audio of today’s oral argument is available at the following link:

United States v. Chin, No. 15-0749/AF (CAAFlog case page): Oral argument audio.

Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of the appellee’s position in this case. The brief is available here and is discussed in this post.

CAAF will hear oral argument in the certified Air Force case of United States v. Chin, No. 15-0749/AF (CAAFlog case page), on Wednesday, January 13, 2016, at 9:30 a.m. The case challenges the authority of the Air Force Court of Criminal Appeals to grant relief for an unreasonable multiplication of charges despite the appellee having waived the issue in a pretrial agreement.

Last August (as discussed here), the Judge Advocate General of the Air Force (no typo) certified one issue to CAAF:

Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In November (as discussed here), the JAG amended the certified issue to remove the reference to an abuse of discretion:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In accordance with a pretrial agreement, the appellee pleaded guilty at a general court-martial composed of a military judge alone to six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them, in violation of Articles 92, 121, and 134. The charges related to the appellee’s mishandling of classified material. The adjudged sentence was confinement for 12 months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority approved only 10 months of confinement (as an act of clemency unrelated to the terms of the pretrial agreement).

The appellee’s pretrial agreement included a provision by which the appellee waived all waivable motions. Waiver is the intentional relinquishment of a known right. Waiver is distinct from forfeiture, which is the failure to preserve an error. Making a timely objection preserves an error. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief for a waived error.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) – also an Air Force case – CAAF held that issues of multiplicity and unreasonable multiplication of charges may be waived in a pretrial agreement. Gladue affirms that the provision in the pretrial agreement in Chin that waived all waivable motions served to waive the issue of unreasonable multiplication of charges, meaning that the appellee was not entitled to any relief from this issue. However, despite the waiver, the AFCCA found that there was an unreasonable multiplication of charges and granted limited relief.

In granting relief for a waived issue, the AFCCA explained that:

[E]ven after Gladue, this court’s statutory authority to affirm findings of guilty and any or all of the resultant sentence is limited to affirming only those that we find correct in law and fact and determine, on the basis of the entire record, should be approved. See Article 66(c), UCMJ. Because of the unreasonable multiplication of charges so plainly presented in this case, we elect to exercise our plenary, de novo power of review and have determined that not all of the findings of guilty should be approved. We recognize this is a significant departure from our consistent practice of declining to review, on appeal, issues that were waived at trial. This deviation from our past treatment and application of waiver is warranted by the facts of this case, as explained in the analysis that follows. We differentiate this case from those in which we have found waiver, in that the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality. Under our broad Article 66(c) authority, we find that not all of the appellant’s convictions should be approved.

Slip op. at 6.

The certified issue challenges the CCA’s authority to take this action.

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In the certified case of United States v. Chin, No. 15-0749/AF, the Air Force JAG is challenging the CCA’s authority to disapprove pleas of guilty (but approve the adjudged sentence) due to unreasonable multiplication of charges despite the appellant entering into a pretrial agreement that including a provision waiving all waivable motions. The CCA’s decision is available here.

When the JAG certified the case to CAAF, the certification identified the following issue for the court’s review:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

However, last week the Air Force JAG amended the certified issue, removing reference to an abuse of discretion by the CCA:

No. 15-0749/AF. United States, Appellant v. Daniel H. Chin, Appellee. CCA 38452.  Notice is hereby given that an amended certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE  MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F. 2009).

The parties may file additional briefs on the amended certified issue under Rule 22(b) within 10 days of the date of this notice.

Notably, Gladue was also an Air Force case. The appellant in Gladue entered into a pretrial agreement with a similar provision waiving all waivable motions. On appeal he asserted that the provision did not prevent him from raising multiplicity or multiplication of charges issues. The Air Force CCA rejected that claim in a published decision, 65 M.J. 903, and CAAF affirmed, holding that the waiver in the PTA extended to the multiplicity and multiplication issues on appeal.

In Chin, the Air Force CCA explicitly acknowledged the holding of Gladue but nevertheless granted (limited) relief. The CCA based its action on the fact that “this court’s statutory authority to affirm findings of guilty and any or all of the resultant sentence is limited to affirming only those that we find correct in law and fact and determine, on the basis of the entire record, should be approved. See Article 66(c), UCMJ.” United States v. Chin, No. 38452, slip op. at 6 (A.F. Ct. Crim. App. Jun. 12, 2015) (emphasis in original). In particular, the CCA granted relief despite the waiver because “the unreasonable multiplication of charges [is] so plainly presented in this case,” and because “the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality.” Id.

CAAF has interpreted the Article 66(c) power at issue, explaining that:

[W]hen a CCA acts to disapprove findings that are correct in law and fact, we accept the CCA’s action unless in disapproving the findings the CCA clearly acted without regard to a legal standard or otherwise abused its discretion. A CCA abuses its discretion when it disapproves a finding based on purely equitable factors or because it simply disagrees that certain conduct— clearly proscribed by an unambiguous statute— should be criminal.

United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010) (emphasis added).

Chin potentially presents two separate questions: Whether there was an unreasonable multiplication of charges and whether the CCA was able to consider that issue despite the waiver in the pretrial agreement. The certification raises only the later question, and the amended certified issue raises it only in the context of whether the CCA is prevented from considering a waived issue as a matter of law. In particular, the amended certified issue removes the claim that the CCA abused its discretion in considering a waived issue, seemingly binding the Government to a purely legal argument.

Both the CCAs and CAAF have the authority to (and routinely do) specify issues for review that were not raised by either side. By casting the CCA’s consideration of the multiplication issue in Chin as a question of law and not a matter of the court’s discretion, the Air Force JAG seemingly wants to bind the CCAs (and, presumably, CAAF) to a non-discretionary standard for the specification of issues. In other words, Chin looks to be about whether military appellate courts are prohibited as a matter of law from considering certain legal issues in a case. If that’s the Government’s argument, then success at CAAF could dramatically change the nature of appellate review of courts-martial.

The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.