CAAFlog » October 2019 Term » United States v. Wall

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

United States v. Wall, No. 19-0143/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Gonzalez, No. 19-0297/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 two Army cases on Tuesday, January 14, 2020, beginning at 9:30 a.m. Both cases challenge the Army CCA’s reassessment of the sentence when the CCA also remanded to the convening authority with a rehearing authorized for convictions that were reversed.

First CAAF will hear argument in United States v. Wall, No. 19-0143/AR (CAAFlog case page), which presents two issues:

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Then CAAF will hear oral argument in United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), which also presents two issues:

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

The primary difference between the cases is their procedural posture. In Wall, the convening authority has not yet acted on the CCA’s decision, while in Gonzalez the convening authority has acted (and the CCA affirmed that action).

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Back in May, CAAF granted review in this Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the 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 specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

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

I noted the grant in this post.

Yesterday, CAAF asked for additional briefs on whether the issue it specified is ripe for review:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the briefs of the parties on the issue granted review on April 29, 2019, it is ordered that the parties file supplemental briefs on the following additional issue:

WHETHER THE GRANTED ISSUE IS RIPE FOR REVIEW BY THIS COURT AT THIS TIME.

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

On Monday CAAF specified review of the following issue in an Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the 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 specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

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

The Army CCA’s opinion is available here.

Specialist Wall was convicted of the rape of one woman and the sexual assault of another (both fellow enlisted soldiers), by a general court-martial composed of a military judge alone, and sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. But during the trial the military judge allowed the prosecution to use the charged offenses for propensity purposes, a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Considering that error on appeal, the CCA found that it was prejudicial for only the sexual assault conviction, and the court set aside that finding and the sentence, authorizing a rehearing. But the CCA also expressed, in a footnote, its

satisf[action] that the sentence adjudged, absent Specification 1 of The Charge, would have been at least a dishonorable discharge and confinement of ten years. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The reassessment being both appropriate and purging the record as it stands of error does not otherwise limit the sentence that may be adjudged at a rehearing. See UCMJ, art. 63.

Slip op. at 8 n.4.

Under Article 66(c) (pre-2019) or Article 66(d)(1) (2019) a CCA “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.” The provision has been the subject of deep analysis in recent cases like United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), and United States v. Nerad, 69 M.J. 138, 144-146 (C.A.A.F. 2010), with CAAF generally upholding its precedent that a CCA has both a duty and the power to conduct a plenary review of a court-martial and may “in the interest of justice, determine that a certain finding or sentence should not be approved.” United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991). The power is not unlimited, however, and the CCAs sometimes press the limits. One recent example is found in the issue certified by the Judge Advocate General of the Air Force in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page):

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

A majority of CAAF did not address that issue when it decided Humphries (though two dissenting judges would have decided it against the CCA). But with the specified issue in Wall, CAAF has presented itself with substantially the same question.