CAAFlog » October 2019 Term » United States v. Muller

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

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

United States v. Jessie, No. 19-0192/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Muller, No. 19-0230/AF (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 Air Force case of United States v. Muller, No. 19-0230/AF (CAAFlog case page), on Tuesday, November 5, 2019, after the argument in Jessie. The court granted review of three issues involving the CCA’s review of a case that was returned to the convening authority because a prosecution exhibit was missing from the record of trial:

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.

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.

After some delays, the convening authority ordered the military judge to complete a certificate of correction for the missing exhibit. A certificate of correction is a document used to correct a record of trial after authentication of the record by the military judge. See Article 54 (pre-2019); R.C.M. 1104(d), Manual for Courts-Martial (2016 ed.). The authentication process was changed to a certification process in the Military Justice Act of 2016 and the 2019 edition of the Manual for Courts-Martial. See Article 54 (2019); R.C.M. 1112(d), Manual for Courts-Martial (2019 ed.). The new process, however, retains the ability of a military judge to correct a record of trial.

The certificate of correction in Muller was completed and the record was returned to the CCA and the case re-docketed. At that point Muller’s appellate defense counsel sought to file a brief raising two assignments of error; one claiming unlawful command influence in the certificate of correction process 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.

CAAF will review whether the CCA was wrong to reject Muller’s brief and – in an issue apparently raised by the Government Division and that CAAF granted review of without requiring certification by the Judge Advocate General – whether the CCA could have simply attached the missing exhibit to the record without returning it to the convening authority for correction.

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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).