A court-martial panel with enlisted representation convicted Sergeant Kelly, contrary to his pleas, of sexually assaulting a fellow noncommissioned officer who had become inebriated in his home after a night of drinking and playing board games. The members sentenced Sergeant Kelly to a dishonorable discharge, confinement for a year, total forfeitures of pay and allowances, and reduction to the lowest enlisted grade. That sentence was adjudged after the military trial judge instructed the panel that a dishonorable discharge was a mandatory punishment for Sergeant Kelly’s offense.

Before the Army Court, among other errors, Kelly asserted that the prosecutor’s argument (asserting that his in-court testimony was false) was improper, and that his sentence to a dishonorable discharge was inappropriately severe. In a published decision, the Army Court found that defense counsel’s failure to object to the prosecutor’s argument waived (rather than forfeited) that issue. As to Kelly’s request that his punitive discharge be set aside, the court held that it lacked the authority to even consider disturbing the mandatory minimum punitive discharge in a sexual assault case. United States v. Kelly, 76 M.J. 793 (A.C.C.A. 2017) (discussed here and discussed here).

From this background, on 22 March 2018 at 9:30 a.m., CAAF will hear oral argument on two issues. The first issue was raised by Kelly in the supplement to his petition for grant of review (discussed here):

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

On Kelly’s urging (see the footnote in Kelly’s Reply at *2), the Court specified the second issue itself (discussed here):

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

The Court only ordered briefs for the first issue. It seems likely the specified issue – concerning whether the improper argument issue should have been considered forfeit rather than waived – will rise or fall with disposition of the same issue granted in United States v. Burris,  No. 17-0605/AR (discussed here and discussed here). Briefs were ordered in Burris, and argument will be heard in that case on 21 March 2018, at 1:30 p.m., the day before CAAF takes up argument in this one.

Addressing the question of whether a Court of Criminal Appeals is bound to affirm the mandatory minimum sentence for sexual assault offenses, Kelly’s brief first relies on the Court of Military Appeals’ 1957 decision in United States v. Atkins, 23 C.M.R. 301, 303:

The desire of Congress to have the [Court of Criminal Appeals determine the appropriateness of a sentence is so strongly stated we concluded that a [Court of Criminal Appeals] can even ameliorate a sentence which the Uniform Code makes mandatory for the court-martial.

With that foundation, Kelly next argues that nothing in Article 56 (creating a mandatory minimum punitive discharge for certain sexual offenses) suggests that Congress intended to disturb that precedent. Specifically, in 2014, Congress amended Article 56 to read:

While a person subject to this chapter who is found guilty of [sexual assault] shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge, except as provided for in [Article 60].

Kelly asserts that while that statute plainly binds trial courts to adjudge a punitive discharge as a minimum punishment for sexual assault convictions, and while it also cross-references the power of the convening authority under Article 60, it says nothing about the Courts of Criminal Appeals or their power under Article 66(c) to:

Affirm only . . . the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.

In his brief at *19, Kelly argues that Congress was surely of Article 66 when it amended Article 56, and:

Had Congress intended the 2014 amendment to Article 56 to require that the mandatory minimum be adjudged, approved, and executed, it would have said so. It unambiguously did not, and assuming otherwise from its silence invites absurd results.

The Army Government Appellate Division’s answer asserts that when a Court of Criminal Appeals is conducting a sentence assessment under Article 66(c), it has no more authority than a convening authority does under Article 60. If this is true, the Division argues, then a Court of Criminal Appeals is just as powerless as a convening authority to disapprove a punitive discharge in a sexual assault case.  In fact, at *15 of its brief, the Division overtly asserts:

The standard by which a CCA may determine sentence appropriateness is not expressed in Article 66 [which prescribes a Court of Criminal Appeals’ power], but in Article 60 [which prescribes a convening authority’s power].

To support that contention, the Government Appellate Division first, at *12 – *13 of its brief, points to the discussion section of Rule for Courts-Martial 1203. That discussion advises practitioners that a Court of Criminal Appeals has “generally” the same powers as the convening authority to modify a sentence.

One might view that discussion section as being merely illustrative – designed to orient an unfamiliar practitioner “generally” with the function and role of a Court of Criminal Appeals. The Division, however, reads that narrative to be an affirmative limitation by the Chief Executive on the statutory power of Courts of Criminal Appeals. The Division’s brief asserts, at *12, that the discussion section for RCM 1203 was drafted “word for word” by the President.

The discussions sections accompanying the Rules for Courts-Martial, are, of course, not promulgated by the President. The Manual for Courts-Martial, at Part I, paragraph 4, explains (emphasis added):

The Department of Defense, in conjunction with the Department of Homeland Security, publishes supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Preface, a Table of Contents, Discussions, Appendices, and an Index. These supplementary materials do not have the force of law.

Further, even that disclaimer has its own discussion section, stating:

These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules.

As such, the Government Appellate Division’s first volley falls short.

Its second volley is comprised of a line of dicta from United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010) (discussed extensively on this blog here, here, here, here, and here).  Specifically, the Division points to this line from Nerad: “Congress[‘] statutory grant of authority to the CCAs with respect to findings and sentence is more limited than the authority granted a convening authority.” 69 M.J. at 145.

The Division’s brief offers that statement as proof that a Court of Criminal Appeals’ Article 66 power is constrained by the limitations which have been placed on convening authorities via the recent amendments to Article 60. But, the Division’s analysis does not sufficiently account for the language from Nerad that followed that sentence, on the same reporter page, elaborating and explaining exactly what the Court meant:

While the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of command prerogative.

That exposition clarifies that what CAAF was rejecting in Nerad was the idea that a Court of Criminal Appeals has “unfettered” discretion; the sentence the Government Appellate Division cited was not intended to suggest that a Court of Criminal Appeals’ authority is derived or limited by Article 60.

Aside from that, the sentence is also dicta. In Nerad the Court of Criminal Appeals set aside findings on equitable principles. CAAF’s discussion of a Court of Criminal Appeals’ power to adjust a sentence was dicta. The Court’s actual holding in Nerad was:

Article 66(c), UCMJ, [does not] permit[] a CCA to disapprove a legally and factually sufficient finding because it believes that the conduct — while falling squarely within the ambit of behavior prohibited by a constitutional criminal statute — should not be criminalized.

69 M.J. at 146.

In his reply brief, Kelly does not touch on the Government Appellate Division’s reliance on a non-binding (and thoroughly-disclaimed) Rule for Courts-Martial discussion section, and he does not dig into the Division’s use and characterization of dicta from Nerad.  

The reply argues, at *3 – *5, that the Government Appellate Division mischaracterizes the nature of the Article 60 restriction. Indeed, the language of Article 60 does not expressly require a convening authority to approve a punitive discharge in a sexual assault case. Instead, the statute bars convening authorities from being able to disapprove such a sentence.  See Article 60(c)(4)(A). This nuance raises interesting questions regarding what, if anything, a convening authority could do if a court-martial panel elected to nullify and refuse to adjudge a mandatory punitive discharge. But, as best I can tell, that nuance does not seem to bear heavily one way or the other on the resolution of the question in this case.

At the end of the day, my view is that the Government Appellate Division’s position is tenuous. Article 56 says what it says. That statute only purports to prescribe what punishment a “court-martial may direct.” It does not mention the Courts of Criminal Appeals or their obligations under Article 66(c). Meanwhile, Article 66(c) gives a Court of Criminal Appeals the exceptionally broad obligation to only approve “such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” (emphasis added)

That strident Article 66(c) language drove the Atkins Court to hold, 60 years ago, that a Court of Criminal Appeals has the power to disapprove even a mandatory minimum sentence. Given the lack of an express statutory statement otherwise, it seems likely that Atkins’ precedent will apply here as well.

Disclaimer: Regular readers will no doubt notice that our argument previews are usually authored by Zachary Spilman. You got stuck with me for this one because Zach will be arguing this case as counsel of record for Sergeant Kelly. The American Bar Association’s recently-released Formal Opinion 480 frowns dreadfully on lawyers who substantively blog about their own cases. Fear not: You’ll get Zach back for future previews.

Case Links (CAAFlog case page):
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Amicus brief – A.F. App. Def. Div.
Amicus brief – N.M. App. Def. Div.
Blog post: Argument preview

One Response to “Argument Preview: Are the service Courts of Criminal Appeals required to affirm the mandatory minimum punitive discharge for sexual assault offenses? CAAF will decide in United States v. Kelly”

  1. Tami a/k/a Princess Leia says:

    If you were to buy into GAD’s argument, then the CCAs could never disapprove an unconstitutional punishment.  I continue to be of the opinion that a mandatory dishonorable discharge or dismissal for contesting a penetrative sexual assault charge is unconstitutional because it punishes servicemembers for exercising their constitutional rights to plead not guilty, demand trial, and confront their accusers.  A dishonorable discharge/dismissal isn’t a “minimum” because it robs a servicemember of all VA benefits, especially officers.  The only other time servicemembers are subject to this “mandatory minimum” is the death penalty, which SCOTUS did away with in Coker v. Georgia.
    Go Zach!