CAAF decided the Air Force case of United States v. Muller, __ M.J. __, No. 19-0230/AF (CAAFlog case page) (link to slip op.), on February 12, 2020. A majority of the court reverses the decision of the Air Force CCA and remands the case for a new Article 66(c) review because CAAF can’t determine if the Air Force court applied an invalid rule of practice and procedure to deny a motion to file supplemental assignments of error.

The decision is per curiam, however Judge Maggs dissents and writes separately.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

Eventually the case returned to the CCA. Muller’s appellate defense counsel then filed a brief raising two assignments of error; one claiming unlawful command influence during the remand and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration. The CCA’s rejection of the brief might have been because of Rule 15.5 of the Air Force CCA’s Rules of Practice and Procedure (2017), which required a motion to file a supplemental pleading within 10 calendar days of the return of a case after a remand. That rule (which is not in the current version of the Air Force CCA’s rules) conflicted with the Joint Rules of Appellate Procedure (required by Article 66(f) (pre-2019; now Article 66(h)), which allowed 60 days for such a filing.

CAAF then granted review of three issues:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

CAAF decides only the first issue, holding that the CCA’s rule – with its 10-day deadline – is invalid “insofar as it contradicts the Joint Rules.” Slip op. at 4. Furthermore, because the CCA summarily rejected Muller’s supplemental brief, CAAF “cannot determine whether the denial was based on the invalid Air Force Rule 15.5, or some other valid basis.” Slip op. at 5. CAAF therefore remands the case for a new review by the CCA, mooting the second (due process) issue and not addressing the third (record correction) issue.

But Judge Maggs dissents because he believes that a remand is unnecessary based on the fact that Muller’s supplemental pleading was filed within the 10-day time limit, and so “the validity of AFCCA Rule 15.5 does not matter in this case.” Diss. op. at 1. Because of that, Judge Maggs also considers the second granted issue. He finds that neither of the errors asserted in Muller’s supplemental pleading had merit, and so there was no prejudice even if it was wrong for the CCA to reject the brief. Finally, based on the positions of the parties, Judge Maggs does not address the third granted issue.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

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