CAAF decided the certified case of United States v. Quick, 74 M.J. 332, No. 15-0347/MC (CAAFlog case page) (link to slip op.), on Tuesday, August 11, 2015. A divided court rejects a Government challenge to longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial. Holding that the Government failed to justify reversing this precedent, CAAF affirms the decision of the NMCCA that ordered a sentence-only rehearing in this case.

Chief Judge Erdmann writes for the court joined by Judge Ryan. Judge Baker writes separately, concurring in the result. Judge Stucky dissents, joined by Judge Ohlson.

The Judge Advocate General of the Navy certified the following issue to CAAF:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

The Navy-Marine Corps CCA ordered a sentence-only rehearing in this case after it reversed the appellee’s conviction of viewing an indecent visual recording in violation of Article 120(c) because it found that the offense requires actually viewing the real-life private area of a person (and not merely viewing a recording as the appellee did). United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. 2014) (discussed here). The CCA ordered the rehearing because it found that it could not reassess the sentence for the other convictions because the penalty landscape was dramatically changed by the reversal of the indecent viewing conviction. The court’s order returned the case to the convening authority with the option to either refer the case to a new court-martial to adjudge another sentence or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii). But the Navy JAG certified the case to CAAF to challenge the CCA’s authority to issue such an order.

In yesterday’s decision CAAF rejects that challenge because:

In the more than six decades since the adoption of the UCMJ, this court has consistently interpreted Article 66(d), UCMJ, to authorize CCAs to order sentence-only rehearings. . . . The ability of CCAs to order sentence-only rehearings is an accepted and viable appellate remedy and is relied upon by all litigants in the military justice system.

Slip op. at 16.

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

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page): Oral argument audio.

United States v. Quick, No. 15-0347/MC (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Marine Corps case of United States v. Quick, No. 15-0347/MC (CAAFlog case page), on Tuesday, May 12, 2015. The Judge Advocate General of the Navy certified the case to CAAF in order to challenge the court’s longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial, with the following issue:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiring to distribute an indecent visual recording, wrongfully viewing an indecent visual recording, and indecent conduct in violation of Articles 81, 120c, and 134. He was sentenced to confinement for six months, reduction to E-3, and a bad-conduct discharge. But on review, in what I called a significant published decision from the NMCCA interpreting Article 120c (2012) in this post, the NMCCA concluded that the offense of indecent viewing requires that an accused actually view the real-life private area of a person, and the court reversed Appellee’s indecent viewing conviction that was based on merely viewing a recording (made surreptitiously) of another person’s private area.

The CCA then remanded the case for a rehearing on the sentence. This seemingly-innocuous procedure returns the case to the convening authority who then has the option to either refer the case to a new court-martial (that may be composed of members or of a military judge alone, depending on the election of the accused) to adjudge another sentence, or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii).

Sentence rehearings are nearly as old as the UCMJ itself, as the Court of Military Appeals (now known as CAAF) held in United States v. Miller, 10 C.M.A. 296, 299 (C.M.A. 1959), that:

a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.

And while innumerable sentence rehearings occurred on the half-century since Miller was decided, CAAF also reaffirmed Miller in its recent opinion in United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013) (CAAFlog case page), though the court was divided on this issue, with Judges Stucky and Ryan practically inviting a Government challenge to end the practice in separate concurring opinions in that case.

In Quick, the Government makes that challenge.

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On Friday, January 30, CAAF docketed a certificate for review of the NMCCA’s decision in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014). I analyzed the CCA’s opinion in this post.

In Quick, the NMCCA significantly limited the reach of Article 120c(a)(1) (2012), finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reversed the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification failed to state an offense. The CCA then ordered a sentence rehearing.

The Government didn’t certify the CCA’s decision regarding Article 120c(a)(1). Rather, it certified an issue challenging the authority of the CCA to order a sentence rehearing in any case:

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 201300341.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.

The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.

Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).

But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, 74 M.J. 517, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.

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