CAAFlog » October 2019 Term » United States v. Guardado

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

United States v. Bess, No. 19-0086/NA (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Guardado, No. 19-0139/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 Army case of United States v. Guardado, No. 19-0139/AR (CAAFlog case page), on Wednesday, October 23, 2019, after the argument in Bess. The court will consider a ruling by the military judge that denied credit for punishment inherent in the loss of pay during the time before a retrial:

Whether the military judge abused his discretion by failing to grant Appellant Article 13, UCMJ, credit in consequence of the Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) violation present here.

Article 13 prohibits punishment before trial. Three years ago, in Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), CAAF addressed a situation where a military accused is convicted at a court-martial and reduced in rank, the conviction is reversed and a retrial planned, the accused is restored in rank, but the accused is not paid at the restored rate.  The situation was the result of interpretations of governing military pay law by the Defense Finance and Accounting Service (DFAS). A military judge held that paying Howell at the reduced rate prior to the retrial violated Article 13. CAAF agreed that Article 75(a) – which requires restoration of rights and privileges when a court-martial conviction or sentence is reversed – mandates that the accused be paid at the restored rate if the accused is restored to duty pending a rehearing. Nevertheless, CAAF found no violation of Article 13 because it concluded that the Government’s erroneous interpretation of Article 75(a) “was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress.” 75 M.J. at 394.

Guardado presents similar facts. Master Sergeant (E-8) Guardado was convicted of numerous offenses in 2014, and sentenced to confinement for eight years, total forfeitures, and reduction to the grade of E-1. CAAF reversed some of the convictions in 2017 and it set aside the sentence. United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). On remand, in 2018, Guardado was acquitted of the the most serious offense (aggravated sexual contact with a child) and resentenced on the remaining convictions that CAAF affirmed: three specifications of indecent liberties with a child, one specification of battery of a child, one specification of indecent language, and one specification of indecent acts. The new sentence included confinement for 55 months, total forfeitures, and reduction to E-1.

Before Guardado was resentenced, however, he was released from confinement. During that period of release he was paid at the E-1 rate (imposed by the first court-martial) rather than the E-8 rate (his entitlement prior to the first court-martial). That’s the Howell violation referenced in the granted issue.

Guardado’s brief claims that the decision to pay him at the E-1 rate was “not in furtherance of a legitimate nonpunitive governmental objection because it is in defiance of this court’s clear and unambiguous ruling [in Howell].” App. Br. at 8. The Government Division’s response acknowledges that Howell interpreted Article 75 to require pay at the reinstated rate, but that the Government is entitled to rely on contrary rulings by the civil courts in military pay claims cases. Gov’t Div. Br. at 9.

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Last Thursday CAAF granted review in two cases.

The first is from the Navy:

No. 19-0086/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE CONVENING AUTHORITY’S SELECTION OF MEMBERS VIOLATED THE EQUAL PROTECTION REQUIREMENTS OF THE FIFTH AMENDMENT.

II. WHETHER THE CONVENING AUTHORITY’S SELECTION OF MEMBERS CONSTITUTED UNLAWFUL COMMAND INFLUENCE.

III. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S MOTION TO PRODUCE EVIDENCE OF THE RACIAL MAKEUP OF POTENTIAL MEMBERS

Briefs will be filed under C.A.A.F. R. 25.

The NMCCA’s decision is here. This is CAAF’s second review in this case, the court having previously reversed the conviction because the military judge provided additional evidence to the members during deliberations without allowing the defense an opportunity to challenge the reliability of that evidence. United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016) (CAAFlog case page). Now, having been re-convicted, Bess challenges the racial composition of the court-martial, asserting that the convening authority excluded members from the panel on the basis of race. The NMCCA rejected the asserted error, however, observing that:

the appellant has not met his initial burden. With the exception of the one member’s questionnaire that had a racial or ethnicity identifying question and response, there is no evidence that the CA [convening authority] knew the race of any of the other nine members detailed to the court-martial. Again, we observe that none of the members listed Navy Region Mid-Atlantic as their parent command on their member questionnaires. As all of the members denied personally knowing the CA during voir dire, we have no reason to suspect that the CA personally knew them and would therefore have known their race. This court cannot even be sure of the members’ race as the record is absent of any questions posed during voir dire to the members by either counsel or the military judge regarding the members’ racial or ethnic background.

Slip op. at 15-16.

The second is from the Army:

No. 19-0139/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT ARTICLE 13, UCMJ, CREDIT IN CONSEQUENCE OF THE HOWELL v. UNITED STATES, 75 M.J. 386 (C.A.A.F. 2016) VIOLATION PRESENT HERE.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is here. Again, this is CAAF’s second review in this case, the court having previously addressed a Hills error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). The granted issues addresses application of CAAF’s decision in Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), however Howell is not mentioned in the CCA’s decision.