CAAF will hear oral argument in the certified Marine Corps case of United States v. Quick, No. 15-0347/MC (CAAFlog case page), on Tuesday, May 12, 2015. The Judge Advocate General of the Navy certified the case to CAAF in order to challenge the court’s longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial, with the following issue:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiring to distribute an indecent visual recording, wrongfully viewing an indecent visual recording, and indecent conduct in violation of Articles 81, 120c, and 134. He was sentenced to confinement for six months, reduction to E-3, and a bad-conduct discharge. But on review, in what I called a significant published decision from the NMCCA interpreting Article 120c (2012) in this post, the NMCCA concluded that the offense of indecent viewing requires that an accused actually view the real-life private area of a person, and the court reversed Appellee’s indecent viewing conviction that was based on merely viewing a recording (made surreptitiously) of another person’s private area.

The CCA then remanded the case for a rehearing on the sentence. This seemingly-innocuous procedure returns the case to the convening authority who then has the option to either refer the case to a new court-martial (that may be composed of members or of a military judge alone, depending on the election of the accused) to adjudge another sentence, or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii).

Sentence rehearings are nearly as old as the UCMJ itself, as the Court of Military Appeals (now known as CAAF) held in United States v. Miller, 10 C.M.A. 296, 299 (C.M.A. 1959), that:

a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.

And while innumerable sentence rehearings occurred on the half-century since Miller was decided, CAAF also reaffirmed Miller in its recent opinion in United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013) (CAAFlog case page), though the court was divided on this issue, with Judges Stucky and Ryan practically inviting a Government challenge to end the practice in separate concurring opinions in that case.

In Quick, the Government makes that challenge.

The Government’s brief makes a great many arguments, but the central theme is that the UCMJ deliberately gives convening authorities (acting under Article 64) and the judge advocates general (acting under Article 69) the authority to order a sentence-only rehearing, but not the courts of criminal appeals (acting under Article 66). The brief highlights the following differences in the language of these statutes:


Article 64(c)(1)(C)  Article 69(c) Article 66(d)
except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; If the Judge Advocate General sets aside the findings or sentence, he may, except when the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing.

(emphases added). The Government argues that the plain language of Article 66 does not give a CCA the authority to order a sentence-only rehearing, and that in Miller the Court of Military Appeals improperly considered the words “findings and sentence” in Article 66 to mean “findings or sentence”:

Particularly in light of the remainder of the Code, the key word in the rehearing power granted in Article 66(d), as pointed out in Miller, is the conjunction “and.” The word “and” makes the phrase conjunctive, requiring the setting aside of both the findings and the sentence in order to allow a Court to order a rehearing.

As the Miller court pointed out, it was necessary to change the word “and” to “or” in order to read Article 66(d) as allowing the then boards of review to order sentence-only rehearings. The Miller court avoided this “literal” reading of Article 66(d) to allow the boards of review to order sentence-only rehearings. Id. This implies the “literal,” plain text reading of Article 66(d) requires the setting aside of both the findings and the sentence before the Courts of Criminal Appeals may order a rehearing.

Congress also used the definite article “the” to modify “findings,” because it particularizes the subject.

Congress did not authorize the Courts of Criminal Appeals to order a sentence-only rehearing if it set aside “a finding and the sentence”, “some findings and the sentence”, or “any finding and the sentence.” Congress did not draft the Article to read “If the Court of Criminal Appeals sets aside findings and sentence, it may order a rehearing.” Rather, it used “the” to particularize “findings” to refer to an integrated whole, requiring a rehearing on both the findings and the sentence.

Gov’t Br. at 12-14 (citations omitted). The Government also asserts that Miller was wrongly decided because it contradicts Supreme Court precedent. In Jackson v. Taylor, 353 U.S. 569 (1957), the Court considered a habeas petition that challenged a sentence that was reassessed by a board of review (the predecessor to a court of criminal appeals). Affirming the board’s authority to conduct such a reassessment, the Court noted that:

[T]he petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure, and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone.

353 U. S. at 579. The Government’s brief characterizes this as meaning that:

the Supreme Court explicitly considered whether Congress intended, and the statutory text permitted, the boards of review to conduct both sentence reassessments and order sentence-only rehearings. The Jackson case is squarely about the lower courts’ scope of authority when reviewing court-martial sentences after the board of review has set aside a finding of guilty but affirmed another.

Gov’t Br. at 19. Yet in a reply brief the Government makes its position less clear:

A. The United States does not contend that “all findings” must be set aside for Courts of Criminal Appeals to order a rehearing.

Contrary to Appellee’s claim, the United States does not argue that a Court of Criminal Appeals must set aside “all the findings and sentence” to order a rehearing. (Appellee’s Br. at 7.) A Court of Criminal Appeals cannot order a sentence-only rehearing when it sets aside the findings. Rather, because the findings and sentence are an “integrated whole,” it must also order a rehearing on any findings it sets aside.

If the Court of Criminal Appeals sets aside a finding or findings but does not authorize a rehearing on both the set-aside findings and sentence, it must reassess the sentence.

Reply Br. at 1-2. The Government is likely forced to make this argument because if it reads Article 66(d) as permitting a rehearing only when all of the findings are set aside, then it eliminates the possibility of any rehearing in a case where an accused pleads guilty to some offenses, but is convicted contrary to his pleas of other offenses, and a CCA finds reversible error in only the contested portion of the trial that would allow the Government a second opportunity to win a conviction on the contested charges.

However, the facts of Quick – where the CCA set aside a finding because the specification did not state an offense, and then dismissed the specification – seem to escape the Government’s analysis. If the CCA need not set aside all of the findings in order to permit a rehearing, then it’s unclear why the NMCCA can’t order a rehearing in Quick even though it dismissed the affected (and inadequate) specification. It may seems paradoxical that a CCA could order a rehearing on a charge that is dismissed, but a convening authority can add new charges to a rehearing. See R.C.M. 810. So, at the rehearing ordered by the CCA in Quick, the accused could face a trial on the merits for an additional charge addressing his conduct that was found insufficient to constitute indecent viewing in violation of Article 120c (for example, the convening authority could refer a charge alleging service discrediting conduct under Article 134).

Considering this, perhaps a better reading of the various powers to order rehearings is to say that a convening authority (under Article 64) or a Judge Advocate General (under Article 69) can order a rehearing that is affirmatively limited to the sentence (where no additional charges may be added), but that a court of criminal appeals may not order such a limited rehearing. Significant to this point is the fact that the scope of a CCA’s remand for a rehearing was an issue in United States v. McMurrin, 72 M.J. 697 (N-M. Ct. Crim. App. 2013) (discussed here). CAAF denied further review in McMurrin, and the Supreme Court denied a petition for certiorari (discussed here).

Were CAAF to hold in Quick that a CCA can order a rehearing under the facts of this case, but that it can’t affirmatively limit any such rehearing to sentence alone in a way that prevents a convening authority from adding new charges, then that would seem to answer both the question presented in Quick and the question presented in McMurrin.

Appellee’s brief doesn’t make this argument. I also found Appellee’s brief to be difficult to follow and understand, and I’m curious to hear what CAAF makes of it during the oral argument.

Appellee’s main argument seems to be that the words “findings and sentence” in Article 66(d) must also include the singular “finding” and sentence because “the Manual for Courts-Martial specifically incorporated 1 U.S.C. § 1 in Rule for Courts-Martial (RCM) 103(21),” and “applying this rule, if one of several findings is set aside, then ‘the findings’ are set aside within the meaning of Article 66(d), UCMJ.” App. Br. at 8.

Appellee’s brief also includes an odd discussion of the term “rehearing”:

The word “rehearing” is a general term applicable to both trial and sentencing. The Government would have this Court limit the scope of “rehearing” in Article 66(d), UCMJ, simply because “rehearing” is accompanied by explanatory language in other portions of the UCMJ. But there is no logical, grammatical, or contextual reason to do this in Article 66(d), UCMJ, because, absent ambiguity, relevant terms are entitled to their “common and ordinary meaning.”

App. Br. at 14. This discussion includes only an oblique reference to the fact that military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). See App. Br. at 14 n.43. It is fairly well-established that a rehearing (on findings, sentence, or both) is a continuation of the former proceedings, a new trial may be ordered when new evidence or a fraud on the court is discovered, and an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense. See, for example, my analysis of the NMCCA’s opinion that CAAF affirmed in United States v. Altier, 71 M.J. 427 (C.A.A.F. 2012) (CAAFlog case page). As such, I don’t agree with Appellee’s argument that the Government’s position would “limit the scope of ‘rehearing.'” App. Br. at 14. Rather, I think the Government merely seeks to limit the power of a CCA to order a rehearing.

There are also three amicus briefs from other appellate divisions: Air Force Appellate Defense, Air Force Appellate Government, and Coast Guard Appellate Government.

The substantive portion of the Coast Guard brief is a single paragraph agreeing with the Government’s position on the merits.

The Air Force Appellate Government division brief is much the same, though it also includes discussion of a decision of the Air Force CCA’s decision in United States v. Sills, 56 M.J. 556 (A.F. Ct. Crim. App. 2001), reversed, 56 M.J. 239 (C.A.A.F. 2002), where that CCA held that it did not have the authority to order a sentence-only rehearing.

The Air Force Appellate Defense division brief includes a more substantive analysis than the other amicus briefs, and it concludes:

“The end of litigation, so much to be desired, is not fully satisfied by the close of the particular law suit, but implies that the question involved therein is settled, that all parties may adjust their dealings and conduct accordingly. A change in the personnel of a court should not mean a shift in the law. Stare decisis is the rule, and not the exception.” Hartranft v. Meyer, 149 U.S. 544, 547 (1893)(Brewer, J., dissenting). The Navy has now joined the Army and Air Force in presenting the same question to this Court in 1959, 2002, and 2015. This Court must end this litigation in accordance with Miller and Sills.

Br. of A.F. App. Def. Div. at 7.

Because the Government’s argument asserts that CAAF has wrongly interpreted Supreme Court precedent, it is unlikely that CAAF’s decision in Quick will be the end of this litigation.

Case Links:
NMCCA opinion
Blog post: Analysis of NMCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Amicus brief: Air Force Appellate Defense Division
Amicus brief: Air Force Appellate Government Division
Amicus brief: Goast Guard Appellate Government Division
Blog post: Argument preview

3 Responses to “Argument Preview: United States v. Quick, No. 15-0347/MC”

  1. stewie says:

    I would think if Congress wanted to limited the authority they wouldn’t have stopped at “and” to make that point. I would think given the number of times the MCM has been updated since 1959 or even 2002, and given how longstanding the practice is, if Congress was unhappy with this interpretation they would have done something about it in the interim to make clear that we’ve all been doing the wrong thing for almost 3 generations now.
    It was “seemingly innocuous” because we’ve been doing it for so long, interpreting it the same way, and it has survived continual congressional scrutiny.  And it’s not even a good idea.  I mean sure it’s great for the government I suppose, they get to add charges if they want, although how often is that really going to happen?  This is basically an attempt to reduce the number of cases the Service Courts overturn by making them overturn part of the findings as well, when there is no error in the findings.

  2. K. Sripinyo says:

    Interesting case and, as always, a great preview. I note that in Footnote 11 the Jackson court came to its conclusion that there was no authority for a sentence-only rehearing by analyzing, in part, whether the CMA had interpreted the statute to authorize such a rehearing. This suggests that if the Court had had a case like Miller, it might have come to a different conclusion.

    Also, it seems to me that the government is turning the legislative acquiescence doctrine on its head when it argues that Congress’s failure to change the “and” to “or” in Article 66 supports its case. When it comes to legislative acquiescence, the Court explained in Apex Hosiery Co. v. Leader, 310 U.S. 469 (1949) that the “[t]he long time failure of Congress to alter the Act after it had been judicially construed … is persuasive of legislative recognition that the judicial construction is the correct one.” In other words, Congress’s failure for fifty plus years to modify Article 66 in a way that would explicitly overrule Miller indicates Congressional approval of sentence-only rehearings.

    It’ll be interesting to see if the government can get three votes on this.

  3. Zachary D Spilman says:

    I share the view that if Congress disagreed with the Miller court’s interpretation, then it would have made made an affirmative change to the UCMJ to prohibit such an interpretation. 

    But the Government’s brief takes the exact opposite view:

    4. Congress’ lack of action in not overturning Miller is irrelevant, but Congress’ decision to not amend Article 66, but rather to continue to reaffirm the statutory scheme, is binding.

    In Miller, the Court of Military Appeals found the “literal” reading of Article 66(d) to be “unreasonable” and instead read the “and” as an “or” to avoid imputing an “unlikely intent” to Congress. Miller, 10 C.M.A. at 299. The Miller court ruled that boards of review could order sentence-only rehearings, construing Article 66(d) to read, “If the board of review sets aside the findings or sentence, it may . . . order a rehearing.” Id. at 299.

    Notwithstanding Miller, Congress never changed Article 66(d) to mirror the Court of Military Appeals’ replacement of the word “and” with “or,” despite having amended Article 66(d) twice since Miller. (J.A. at 64-65, 74.)

    One could read this as Congress simply overlooking Miller if it had not also made significant changes to other portions of the Code to allow for other actors to order sentence-only rehearings. But Congress made these other changes, establishing a statutory scheme in which certain actors, such as the convening authority and the Judge Advocates General, may order sentence-only rehearings. This power is not meant to extend to the Courts of Criminal Appeals.

    Gov’t Br. at 11-12