CAAF decided the Army case of United States v. Kelly, 77 M.J. 404, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).

“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:

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

The court later specified a second issue involving improper argument by the trial counsel:

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?

Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.

The heart of CAAF’s reasoning is found in these two paragraphs:

In the instant case, Article 56(b), UCMJ, and Article 66(c), UCMJ, initially appear to be in tension. However, the two provisions may be harmonized by construing Article 56(b) as a limit on the court-martial, not on any of the reviewing authorities. We have previously elected to treat mandatory minimum sentences as such. For example, in United States v. Jefferson, this Court declined to construe Article 118’s mandatory minimum punishment as an absolute minimum, and instead interpreted it as applying only to the court-martial, thus leaving appellate authorities “free to reappraise the appropriateness of the sentence in the normal exercise of their review powers.” 7 C.M.A. 193, 194, 21 C.M.R. 319, 320 (1956). On that basis, this Court concluded that a board of review could ameliorate a mandatory sentence without first changing the findings of guilty. Id.; see Atkins, 8 C.M.A. at 79, 23 C.M.R. at 303 (“[T]he desire of Congress to have the board of review determine the appropriateness of a sentence is so strongly stated we concluded that a board of review can even ameliorate a sentence which the Uniform Code makes mandatory for the court-martial.”).

Such treatment gives full force and effect to both Article 56(b), UCMJ, and Article 66(c), UCMJ. Moreover, it recognizes that Congress has vested the CCAs with the oft-cited “awesome, plenary, de novo power of review,” Cole, 31 M.J. at 272, that effectively gives them “carte blanche to do justice.” Claxton, 32 M.J. at 162.

Slip op. at 4-5. Chief Judge Stucky also observes:

It has not escaped our attention that, while Congress has made many changes to the UCMJ over the years, Congress has left Article 66(c) largely intact. Its language functionally unchanged since the UCMJ’s enactment in 1950. Although Congress has seen fit to impose several new limits on a convening authority’s power, it has not, to date, similarly constrained the CCAs.

Slip op. at 5-6 (citations omitted).

The opinion concludes:

For the foregoing reasons, we decline the Government’s invitation to read an implied repeal of the CCAs’ vast powers into Article 56(b), UCMJ. . . . We trust that Congress knows how to limit the broad powers of the CCAs and note that Congress remains free to do so if it so chooses. To date, Congress has not so chosen. Until (and unless) it does, we hold that a CCA has the power to disap-prove a mandatory minimum sentence set forth in Article 56, UCMJ.

Slip op. at 6.

Case Links:
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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

16 Responses to “Opinion Analysis: A CCA has the power to disapprove a mandatory minimum punitive discharge, in United States v. Kelly”

  1. Saroyan says:

    Well done, Zach.

  2. Brian Bouffard says:

    You’re the man, Zach!

  3. Dew_Process says:

    Great job!  Congrats!

  4. Adlaw Guy says:

    I expect the law will be altered.  Currently:  In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and 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 considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
    The new law is likely to be:  In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings approved by the convening authority. It may affirm only such findings of guilty as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.  If findings are set aside, the court may adjust sentence in accordance with the record, the RCM, and the provisions of the UCMJ governing sentencing at courts-martial.

  5. stewie says:

    Agreed. Congress will alter 66. I really don’t buy the argument that Congress intended for the appellate courts to go below mandatory minimums they established…but, having said that, if you write the law very broadly/giving almost infinite power (sans Infinity Gauntlet), and then don’t bother to change it when you change other parts of the law that are directly related (and in conflict), you are logically inviting rulings like this case.

  6. Zachary D Spilman says:

    I don’t agree that it’s likely Congress will alter Article 66 to prohibit a CCA from assessing the appropriateness of a mandatory minimum punitive discharge, nor do I believe that’s the policy that was originally intended.

    A significant part of my argument to CAAF that Congress did not (sub silentio or otherwise) limit a CCA’s power under Article 66 when it enacted Article 56(b) was that Congress also did not limit the multiple other powers granted under the UCMJ to reduce a sentence. Specifically, as I wrote in my primary brief:

    Article 71(b) gives the Secretary concerned plenary power to “commute, remit, or suspend the sentence, or any part of the sentence” in a case where the sentence extends to dismissal of a commissioned officer, cadet or midshipman; Article 74(a) gives the Secretary concerned plenary power to remit or suspend any part or amount of the unexecuted part of any sentence not approved by the President (except for certain sentences to confinement for life without the possibility of parole), and also the authority to delegate this power; and Article 74(b) gives the Secretary concerned the power to substitute an administrative discharge for a punitive discharge for good case. 

    Br. at 16-17. And in a footnote I addressed the authority Congress provided to delegate the Article 74(a) secretarial clemency power:

    The Secretary of the Army delegates the entire Article 74(a) power to the Assistant Secretary of the Army (Manpower and Reserve Affairs), and also delegates the entire Article 74(a) power (but with limitations) to the Judge Advocate General of the Army. ¶ 5-39, Army Regulation 27-10, Military Justice (May 11, 2016) (JA at 51). 

    The Secretary of the Navy delegates the entire Article 74(a) power as far as “all general court-martial convening authorities over the command to which the accused is attached.” ¶ 0158a, JAG Instruction 5800.7F, Manual of the Judge Advocate General (June 26, 2012) (JA at 52).

    The Secretary of the Air Force delegates the entire Article 74(a) power in many (but not all) cases as far as “a commander exercising GCMCA over the command to which the accused is assigned.” ¶ 11.19.2, Air Force Instruction 51-201, Administration of Military Justice (June 6, 2013) (JA at 54).

    The Secretary of Homeland Security delegates the entire Article 74(a) power to the Commandant of the Coast Guard. ¶ 1.F.6.d.(4), Commandant Instruction M1600.2, Discipline and Conduct (September 29, 2011) (JA at 55).

    Br. at 16-17 n.3. So that’s four separate powers to reduce a sentence, all created by Congress in the UCMJ, and none mentioned in Article 56(b): Article 66(c), 71(b), 74(a), and 74(b).

    Furthermore, at least one Clemency and Review Board (acting under authority delegated by the service secretary under Article 74(a)) has mitigated a mandatory minimum punitive discharge in a case that I discovered after oral argument in Kelly (I filed a citation to supplemental authority). 

    Insofar as the original intent of Congress matters, I believe that it wanted to do two separate things. First, it wanted to limit the discretion of convening authorities (largely because of General Franklin’s handling of the Wilkerson case). Second, it wanted to establish a minimum sentence to be adjudged in certain cases. But those two separate goals overlapped in the fact that even under the newly-limited discretion, a convening authority still had power to reduce sentences. Accordingly, Congress specifically addressed that overlap by (1) referencing Article 60 in the new Article 56(b), and (2) amending Article 71(d) to also reference Article 60. In so doing, it created a situation where a court-martial must adjudge the mandatory minimum, a convening authority may not reduce it (absent a PTA or substantial assistance), and every other actor under the Code continues on, business as usual.

    Those other actors – the CCAs, the service secretaries, the President – didn’t lose their discretion because they haven’t acted in a way that Congress finds unacceptable. Yet.

  7. Isaac Kennen says:

    I agree, Congress is unlikely to clip the CCAs’ wings. The CCAs have such far-reaching power because:

    [Such power] provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility.

    United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). 
    Further, CCAs have that power because:

    In the military justice system . . . servicemembers accused at court-martial are denied some rights provided to other citizens [especially the right to a trial by jury required to be unanimous in their verdict].

    United States v. Rivera, ACM 38649 (AFCCA 2016).
    The Supreme Court has made clear that the constitutionality of the military justice system is dependent upon Congress striking the right “balance” between the rights of service members and command authority. See Weiss v. United States, 510 U.S. 163, 178 (1994) (oyez).  
    I think that balance is precarious as it is with convening authorities having been de-fanged and the Article 32 process having been rendered impotent.
    True, to counter-balance those changes, Congress (in 2019) will require 8 hand-picked members in general courts-martial and 4 in special courts-martial (rather than 5 and 3, respectively). But, I’d say that’s still a far cry from a jury selected at random, 12-strong, and required to be unanimous. Added to that is the fact that military judges are still fully executive branch officers, rather than judicial officers, wholly dependent upon executive branch officials for their livelihood and career progression, and they lack a fixed term. 
    Under those circumstances, I think eroding the CCAs would risk pushing the system over the constitutional ledge.  

  8. Philip Cave says:

    Zeke, while I think your history and analysis is correct, I’m not sanguine, not sanguine at all that things won’t be changed.
    Those in Congress pushing for change are blank slates about the history of why we needed and have the UCMJ [].  And they aren’t willing to write on the slate, rather they double down.  After WWII the concern was commanders and their unlawful influences, now what do we have?  The same problems of UCI (although perhaps worse) and, IMHO, the legislative interfering in individual cases, which IMHO, is in violation of their oath of office.
    Their (the legislators) oath of office, like ours, requires defense of the Constitution.  Thus, they should be like Switzerland in developing a military discipline system that can impose a life penalty–as neutral as possible–in developing a system that allows for accountability while ensuring a fair process in imposing that accountability.  They (the Congress) are not IMHO balancing the needs of a fair trial because a fair trial may prevent the conviction–yes, you know I am a cynic.  With all the words said and printed about military sexual assault concerns, how much talk has there been about having to maintain a fair system that those subject to that system can accept and believe in?  A JPP panel–anything else official?
    Article 32 was changed, OK.  But it remains the same in a major respect–it’s still a road bump, just less of one.  Unlike in federal court, a finding of no probable cause is not dispositive.  Why not?  Congress and DOJ are happy with the idea that no PC means dismiss, with the option to return should there be additional evidence found.  That’s the system out there which is a reasonable protection from “baseless charges.”  Remember?  The 32 was intended to be “a bulwark against baseless charges.”  (Citations omitted.)  But that’s not what we have, is it?  How many times does the PHO find no probable cause and the charges or specifications get referred anyway without any explanation?  Because the 32 is not intended to be a bulwark against baseless charges just a box to be checked.  Don’t you laugh when the TC (usually AF) wants to talk about dry-docketing trial dates when scheduling a 32 because they are worried about the metrics and know it’s going to be referred?  The 32 process was always “impotent” against the commander who would refer baseless charges anyway, but at least it worked pretty well most of the time.  So, despite calls for the removal of the commander from the process, the Congress is happy to have the commander in the process to disregard the PHO no PC finding and go to trial–they have control over that person’s promotion, assignments, and retirement check and as we’ve discussed, not bound by attorney rules of ethics.
    So Zeke, to quote Inspector Wilcox, a fictional character, I’m not sanguine, not sanguine at all that change won’t come or that the courts will care if more significant changes come and change go too far.

  9. stewie says:

    You are talking 50s and 60s Zach as if we didn’t just give mandatory minimums to sex assault cases a few years ago not because of convening authorities but because of panels giving light sentences (or almost none at all) and the outrage that followed.
    It’s a new Congress, with a new emphasis. So to think that it’s unlikely? Sorry, it’s very likely, and it will be bipartisan.
    And there isn’t really a policy reason not to do it in the case of mandatory minimums. There’s nothing inherently wrong with the idea that certain serious crimes should have minimum punishments. We’ve been doing it in the civilian world since forever.

  10. Contract Lawyer says:

    Perhaps Congress will change the law the first time they see a result they don’t like. Unless a mandatory minimum is actually changed by a CCA, they probably won’t even take notice of this issue.  It’ll have to be a case that gets negative publicity.

  11. stewie says:

    Or a reporter to complain in an article that “the military justice system is toothless because it can’t even enforce it’s own mandatory minimums” or something like that, or an interested congressional intern seizes on it as an issue for their boss.

  12. Philip D. Cave says:

    I think Stewie is referring to someone like this dude.

  13. k fischer says:

    Regarding Article 66 review, I find Judge Wolfe’s dissent in US v. Frost nteresting:$FILE/mo-frost,%20nl.pdf

  14. Contract Lawyer says:

    KFish – Yup, the trial verdict and appeal decision was luck of the draw.  Mulligan is automatic guilty vote, so on that Army panel there were only two available or possible votes for the accused.  The climate and command influence likely tilted the verdict at trial.   This guy may well have done it, but it appeared to be more than reasonable doubt. This guy just got screwed. 

  15. k fischer says:

    Contract Lawyer, 
    Sounds like a tough loss for the defense since there appeared to be ample evidence of reasonable doubt.  These kid/custody cases are always tough, and there is an inclination to go JA because a MJ should know reasonable doubt, particularly when there is only one spec. 
    But, I typically err on the side of a panel, particularly when I have a strong case and I think there will be residual doubt on sentencing if my guy is convicted or there is the possibility of evidence that has been the suppressed with a motion in limine, i.e. polygraph failure or suppressed text messages. I’m always concerned that the MJ won’t be able to set aside the suppressed evidence in his or her mind when determining guilt.
    But, you can’t second guess yourself once you make the plan.  You can only execute the plan, do your best, and hope for an acquittal.  His attorneys clearly fought hard and have done that.

  16. Contract Lawyer says:

    Judge Alone = preponderance of the evidence.   Even with a panel, you need to say he didn’t do it, but then remind about the standard of proof beyond a reasonable doubt.  Or maybe there are some judges who are honest with the standard, but analysis of the appeal decisions show it is basically a review for preponderance of the evidence.