CAAFlog » October 2019 Term » United States v. Easterly

CAAF decided the certified Air Force of United States v. Easterly, 79 M.J. 325, No. 19-0398/AF (CAAFlog case page) (link to slip op.), on February 4, 2020. Holding that a military judge has a duty to instruct members on the impact of a punitive discharge on retirement benefits only when the defense actually requests such an instruction, CAAF reverses the decision of the Air Force CCA holding that it was plain error for the military judge to not give such an instruction in this case where it was not requested.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a disability retirement. That fact was presented during the sentencing phase of the court-martial, but the defense did not request an instruction to the members that an adjudged punitive discharge would likely eliminate the possibility of that disability retirement. Considering that, two out of three judges of a panel of the Air Force CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

The CCA’s decision relied, in part, on CAAF’s decision in United States v. Boyd, 55 M.J.  217 (C.A.A.F. 2001), which announced one rule and applied a second one. First, CAAF announced that “military judges in all cases tried after the date of this opinion [are required] to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.” 55 M.J. at 221. Then, CAAF explained that “because the defense did not request an instruction on the impact of a punitive discharge on temporary disability retirement, we will grant relief only if the military judge’s failure to instruct sua sponte was plain error.” 55 M.J. at 222. In Easterly the Air Force CCA applied that second rule and concluded that the military judge’s failure to instruct sua sponte – meaning without prompting or suggestion – was plain error.

The Judge Advocate General of the Air Force then certified one issue to CAAF:

Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

In yesterday’s opinion CAAF holds that, as far as the trial is concerned, “there was no error here, let alone plain error.” Slip op. at 2. In so holding, the court roughly discards the second test from Boyd because “the [first] Boyd test, which requires a request, cannot be squared with a sua sponte duty for a military judge to give the instruction.” Slip op. at 7.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Easterly, No. 19-0398/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Finch, No. 19-0298/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the certified Air Force case of United States v. Easterly, No. 19-0398/AF (CAAFlog case page), on Wednesday, December 4, 2019, at 9:30 a.m. The Air Force CCA ordered a sentence rehearing after finding plain error in the failure to instruct the members on the effect of a punitive discharge on a possible disability retirement, and the Judge Advocate General challenged that conclusion with a single issue:

Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

The Air Force Appellate Government Division challenges every aspect of that decision: It argues that there was no error because the record does not support the conclusion that Easterly would have been medically retired but for the punitive discharge; that any error is not plain because plain error under the circumstances requires that the defense actually request an instruction; that the defense had strategic reasons to not want an instruction; that giving an instruction in this case would have unduly interfered with the parties’ presentation of the case; and that any error is harmless because a punitive discharge was virtually certain.

Easterly responds by highlighting how the Government Division’s arguments obliterate the distinction between preserved and forfeited errors, are based on pure speculation of the motives of Easterly’s defense counsel, and misapply the prejudice prong of the plain error test.

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On Monday CAAF docketed this certification by the Judge Advocate General of the Air Force:

No. 19-0398/AF. U.S. v. Chase J. Easterly. CCA 39310. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR BY FAILING TO INSTRUCT THE PANEL SUA SPONTE REGARDING THE IMPACT OF A PUNITIVE DISCHARGE ON APPELLEE’S POTENTIAL PERMANENT DISABILITY RETIREMENT, WHERE APPELLEE DID NOT REQUEST SUCH AN INSTRUCTION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 28th day of August, 2019.

The AFCCA’s opinion is available here. The appellee, Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, however, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

Next, on Tuesday CAAF granted review in this Air Force case:

No. 19-0230/AF. U.S. v. Jordan R. Muller. CCA 39323. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following 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.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is here, but it is a summary disposition. I can, however, report that the first two issues involve an AFCCA rule (Rule 15.5) that gives an appellant only 10 days to move to file a supplemental brief after a case is remanded for anything other than a rehearing, and that the third issue was raised by the Government Division (in its response to the appellant’s petition) as a challenge to the AFCCA’s action that denied the Government Division’s motion to attach a missing prosecution exhibit (the AFCCA instead remanded the case for a certificate of correction under R.C.M. 1104(d), leading to the situation addressed in the first two issues).