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.

Judge Ryan begins by acknowledging the general rule that “when an error is waived, the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis.” Slip op. at 3 (quoting United States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999)) (marks omitted). However, she finds that automatic review by a court of criminal appeals under Article 66(c) is “wholly dissimilar” from the kind of review conducted by other appellate courts. Slip op. at 4. Judge Ryan explains that, unlike other courts, the courts of criminal appeals conduct “a plenary review” and “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved.” Slip op. at 4 (quoting Article 66(c)) (marks and other citations omitted). This statutorily-required review, explains Judge Ryan, imposes an “affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved.” Slip op. at 4 (marks and citations omitted) (emphasis added). As such:

If an appellant elects to proceed with Article 66, UCMJ, review, as in this case, then the CCA is commanded by statute to review the entire record and approve only that which “should be approved.” A fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error.

Slip op. at 5 (emphasis in original). But the election an appellant makes does not occur in a pretrial agreement; it occurs if an appellant waives (or, more commonly, when an appellant doesn’t waive) appellate review pursuant to Article 61. Such a waiver is only effective if made after the convening authority acts. Chin made no such post-trial waiver, and the majority finds that it would “defy logic” to allow an accused to “sidestep Article 61” with a provision that would “in effect, waive the right to complete appellate review as part of a [pretrial agreement].” Slip op. at 5.

Yet Chin’s trial-stage waiver isn’t rendered totally meaningless, as the majority holds that “waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or this Court.” Slip op. at 6. The existence of such a waiver is also a factor that a court of criminal appeals should consider in determining whether to grant relief. And in this case the CCA did consider the waiver, explaining in its opinion that relief was warranted by the facts of this particular case. That, concludes Judge Ryan for the majority, “was well within the limitations of its Article 66(c), UCMJ, review.” Slip op. at 6.

Dissenting are Judges Stucky and Ohlson, and Judge Stucky’s dissenting opinion begins by castigating the majority as relying “on faulty readings of Articles 61 and 66.” Diss. op. at 1. Unlike the majority’s conclusion that Article 66(c) commands a court of criminal appeals to affirm only the findings and sentence that it believes should be approved, the dissenters read the statute as harmonious with traditional applications of waiver. “The ‘should be approved’ language,” asserts Judge Stucky, “does not grant the CCAs authority to disregard valid waivers and review the whole case as if a waiver never occurred, as the majority would have it.” Diss. op. at 2.

Judge Stucky also notes that the majority’s approach vests significant discretion in the courts of criminal appeals:

It gives a CCA unfettered discretion to impose its vision of fairness on the parties but prohibits the appellant from suggesting what is fair or which waived issues the CCA should consider. The CCA would rule by judicial fiat, as in this case, without giving the parties notice and the opportunity to argue their positions. This is a novel conclusion that smacks of judicial paternalism of the highest order. . . . The fact that the CCA may, but is not required to, consider that an accused waived the issue at trial is no standard at all. It is no more than the uncertain measure of the conscience of the particular judges presiding over the case – in other words, pure equity.

Slip op. at 3.

The final portion of Judge Stucky’s dissenting opinion is an observation of the importance of pretrial agreements in the military justice system, with a warning that without the “finality and enforceability” of a waiver in a pretrial agreement “the government has less incentive to engage in such negotiations.” Diss. op. at 4. However, considering the limited nature of the relief provided by the Air Force CCA in this case (and particularly the fact that it affirmed the sentence as approved by the convening authority), it’s hard to imagine that the Government will be dissuaded from entering into similar agreements in the future.

Case Links:
AFCCA opinion
Blog post: The Air Force JAG certifies two cases
Blog post: The Air Force JAG amends the certified issue
Appellant’s (Government) brief
• Appellee’s Brief
Amicus Brief of Navy-Marine Corps Appellate Government Division
Amicus Brief of Army Appellate Government Division
Amicus Brief of Coast Guard Appellate Government Division
• Amicus Brief of Marine Corps Defense Services Organization
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

15 Responses to “Opinion Analysis: A court of criminal appeals may grant relief for errors waived at trial, in United States v. Chin, No. 15-0749/AF”

  1. Former DC says:

    Since Zack is too modest to say this, I will.  Compare the USMC DSO amicus brief to the opinion.  The parallels are striking.  It isn’t a complete cut-and-paste job, but the opinion looks more like the amicus brief than the brief of the Accused.

  2. Steve Newman says:

    I’m very proud of Zach and the work he did on this amicus.  Great job, Zach!  

  3. westpointquaker says:

    A ludicrous opinion that returns CAAF to the judicial paternalism of COMA past.  Apparently except for a limitation on sentence, a PTA is worth as much as toilet paper.  Any waiver provision is meaningless.  And a CCA becomes a court of equity.  Of course, as most former Supreme Court law clerks run amok, Judge Ryan seems to take a dim view on the rule of law.  God help us all.  

  4. Zeke Kennen says:

    Apparently except for a limitation on sentence, a PTA is worth as much as toilet paper. 

    That would be a good point, westpointquaker, if the world were not as it is.  There remains a great benefit to the government in being relieved of the burden to satisfy proof beyond a reasonable doubt.  There is also value to the government in avoiding having to pull members away from their military duties to serve as panel members and witnesses.  There is value in having the defense enter into stipulations of fact or reasonable stipulations of expected testimony as opposed to producing live witnesses, with the inevitable travel and conflicting schedule complications that come with having to work with human beings on any enterprise whatsoever.   There is value to not having to produce expensive and notoriously-unavailable experts.  There is value in not subjecting sensitive witnesses to the crucible of cross-examination.  And, perhaps most importantly, there is value in being seen as being just rather than vindictive and cavalier about a process that is supposed to be deliberate and dispassionate.All in all, the pretrial agreement remains a powerful tool that any reasonable government servant charged with doing justice should be happy to use in appropriate cases.  It is foolish to suggest that we ought to abandon such a tool merely because one in 100 cases might result in a CCA providing the accused relief for an unreasonable multiplication of charges, especially when that “relief” tends to not touch the sentence at all.  If that’s what’s keeping someone from signing a PTA, I think they should reconsider.  
    Ultimately, I think Judge Ryan, Chief Judge Erdmann, and Judge Sentelle (from the DC Circuit) put it well in the slip opin. at 5:

    Contrary to the Government’s claims of Armageddon, there is nothing new about today’s decision, and it does not mean that a “waive all waivable motions” provision or unconditional guilty plea is without meaning or effect.

  5. Zachary D Spilman says:

    Well that’s not the slightest bit fair, westpointquaker, or even really accurate. However, I would go so far as to say that the Air Force JAG blew it by amending the certified issue to remove the question of whether the CCA abused its discretion (discussed here). That was either a strategic blunder of epic proportions or an outright gift to Chin because (as noted in the DSO amicus):

    The facts of this case potentially present two separate questions: Whether there was an unreasonable multiplication of charges and whether the Court of Criminal Appeals was able to consider that issue despite the waiver in the pretrial agreement. The certification raises only the latter question, and the amended certified issue raises it only in the context of whether a court of criminal appeals is prevented from considering a waived issue as a matter of law. In particular, the amended certified issue removes the originally certified question of whether the Court of Criminal Appeals abused its discretion in considering the waived issue in this case.

    Having turned CAAF away from the question of whether the CCA should have granted relief in this case (the true measure of paternalism), and fixating on whether the CCA could ever grant relief despite the PTA (a nice little question of statutory interpretation), the Government made this a black-and-white case in a full-color world.

    Just because a CCA may grant relief for errors waived at trial doesn’t mean that a CCA must, or even will in any measurable quantity, actually do so. Zeke Kennen writes that “one in 100 cases might result in a CCA providing the accused relief,” but the real number is probably closer to 1 in 10,000.

  6. The Silver Fox says:

    Not to interrupt the end zone dance, but that 1 in 10,000 number will fall to 0 in 10,000 once the Military Justice Review Group Legislation is passed.

  7. Iuris Consulti says:

    So you’re telling me there’s a chance… YEAH!

  8. k fischer says:

    Not to interrupt the end zone dance, but that 0 out of 10,000 number will become 0 out of 0 when the Chinese, Russians, Iranians, North Koreans, and Cubans invade and handily defeat the United States because the US military has spent the past 8 years focused on training its forces to fight an insignificant and embellished bogeyman, i.e. sexual assault and terror cells, more than it spent on training how to defeat a large conventional force, after which we might actually see a 1 out of 5 rape crisis.
    “This violates military justice review group legislation!”  I never heard of it…..

  9. The Silver Fox says:

    The ole guns versus butter argument.  Touche.

  10. stewie says:

    which says nothing of our complete lack of preparation for the Independence Day Aliens inevitable arrival.
    (since we are being silly).

  11. Matt says:

    I’m always a little amused at how apoplectic some people, like westpointquaker, seem to get at the notion of military appellate courts having review authority.  “But the civilians don’t get that!”  OK, so are you in favor of unanimous juries, binding 32 recommendations or grand jury rights, learned counsel for capital cases, removing the commander from the process, etc?  No, because we are different and military justice needs to be different!  But every couple of years whenever a CCA exercises its review authority, they think the whole system is coming apart.

  12. charlie gittins says:

    Matt:  You question the need for learned counsel for DP cases?  Really?  We give the terrorists the right to civilian counsel paid for by the GOV for the Military Commissions.  You don’t think a Sergeant who has never before offended should get the same level of counsel as a terrorist in a murder trial?  THAT’S ONE REASON MILITARY JUSTICE IS F’d.  

  13. DCGoneGalt says:

    Matt:  I would like to start a 1980s teen movie slow-clap for you.  

  14. Matt says:

    Charlie Gittins, in my frustration, I failed to make my position clear.  I am definitely in favor of learned counsel for DP cases.  I’m also in favor of binding 32s, unanimous juries, etc.  My point was that generally the same people who oppose all those things “because we are different” then turn around and wail about things like appellate factual review and broad discover rights because “that’s not how the civilians do it.” 

  15. Charlie Gittins says:

    Well, Matt, then we seem to agree on what needs to be done to improve MJ.  Unfortunately, Congress and the civilian leadership do not want to make things more reliable; they want to get convictions, preferably in sexual assault cases.  It’s why I left the practice.