Petition for Writ of Certiorari — Nerad v. United States

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Supreme Court, U.S.

FILED

lg -a 32 OCi 21 2010

No. 1QOFFICE OF THE CLERK

In the Supreme Court of the United States

MICHAEL ‘TI’. NERAD,

Senior Airman, United States Air Force,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Dwight H. Sullivan

Counsel of Record

Air Force Appellate Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20032

(202) 767-8885

dwight.sullivan@pentagon.af.mil

Counsel for Petitioner

QUESTION PRESENTED

Article 66(c) of the Uniform Code of Military

Justice authorizes the Courts of Criminal Appeals

(the military justice system’s intermediate

appellate courts) to set aside convictions on

discretionary grounds other than legal error.

Article 67(c) provides that the Court of Appeals

for the Armed Forces “may act only with respect

to the findings ...as... affirmed or set aside as

incorrect in law by the Court of Criminal

Appeals.” The question presented 1s:

Did the Court of Appeals tor the Armed Forces

exceed its statutory jurisdiction when it reversed

a Court of Criminal Appeals decision that set

aside a finding of guilty on a basis other than

being “incorrect in law’?

TABLE OF CONTENTS

QUESTION PRESENTED ......... a a

TABLE OF AUTHORITIES ........ ei oe

OPINIONS BEAR We ciisesseessssess.<0- oo) of

JURISD ICT Hpi eavassss sss... ae

STAT U Tee Fi ein ace scccecscc cece cs eeee. 2

STAT ERB cect ave csaccecss......00. ie

REASONS FOR GRANTING THE PETITION ....6

[. CAAF has no power to act with

respect to a finding of guilty that

was set aside by a Court of

Criminal Appeals on a ground other

A 7

A. Article 67(c)’s plain language

forbids CAAF from acting

with respect to findings that a

Court of Criminal Appeals set

aside on a basis other than

Be ne

B. CAAF’s precedent does not

justify its departure from Article

67(c) ’s plain language ...................... 8

Il. ‘The Question Presented is important

and warrants this Court’s review.......20

A. CAAF has engaged ina

pattern of construing its

jurisdiction-granting statute

De 20

B. Certiorari Js appropriate despite

this case’s interlocutory posture....22

CON CLUS IU ea ss...0............. 25

APPENDIX A: Court of Appeals for the

Armed Forces’ Decision.......

APPENDIX B: Court of Appeals for the

Armed Forces’ Order.

APPENDIX C: Air Foree Court of Criminal

Appeals’ Decision ..

APPENDIX D: Air Force Court of Criminal

Appeals’ Order..

APPENDIX E: 10 U.S.C. §§ 866, 867 (2006)

TABLE OF AUTHORITIES

Cases

Bowen v. Massachusetts, 487 U.S. 879 (1988)....15

Clark v. Martinez, 543 U.S. 371 (20085)............... 14

Clinton v. Goldsmith, 526 U.S. 529

ana UR AP Catan SP ee tiny A ROA Onn RNR OOD 6, 15, 21

Comm r v. Keystone Consol. Indust., 508 U.S.

EE,” ita As BRE he Coan Shae net MBG AR IS CHAS wey nat 12

Delaware Div. of Health & Social Services v.

Dep't of Health & Human Services, 665 F.

a me ge 8 eb RR Dy) ie en a 15

Fla. Dep't of Revenue v. Piccadilly Cafeterias,

198 eS Ce Oe Ce 8 ee 10, 13

Freeman v. Gonzales, 444 ¥.3d 1031 (9th Cir.

S| MANE pep URE rie ta OR MLL tat Se ee ee ed Be RPE 13

Kreutzer v. United States, 60 M.J. 453

DET? Me.) RR EE ai aR oR Set ee ee 20

Solorio v. United States, 476 U.S. 1181

| TRE OT Ree EO ROT EE REEL I Oa Tere Rr Te 23

United States v. Bunting, 6 C.M.A. 170, 19

C.M.R. 296 (1955)............... de cuununid eeadadeeeiie cake 18

United States v. Denedo, 129 S. Ct. 2213

(+: MERRIE DREN ABer ote O Ive apna N Ae eo 6, 15, 23

United States v. Humphries, _— M.d.

No. 10-5004/AF (C.A.A.F. Aug. 17, 2010)

ee OTe TPES LT Ene Oe 2)

United States v. Leak, 61 M.J. 234 (C.A.A.F.

AE ne Fey eon ER ee RR re passim

United States v. Leak, 58 M.J. 869 (A. Ct.

Er sci ceh can scusssauccadsckatneanuussinsuaes 9

United States v. Lopez de Victoria, 66 M.J. 67

eee <I hack se csnaiackendumcndinccuepeisnsowcerostlaci) 20

United States v. Quiroz, 55 M.J. 334 (C.A.A.F.

ge RRR OE es er E nD RI AUREUS WHFS SRR vs eeu 1,19

United States v. Thompson, 2 C.M.A. 460, 9

6) 6 get.) Pe cenis cree: 4,18

United States v. Turner, 15 C.M.A. 438,

Pee UM ee soos cs sev cecencecss tasceseseoniancecix, 21

United States v. Wuterich, 67 M.J. 63

EE OE oe | Bese a Oi Selina ei line Gn ARE 21

Constitutional Provision

Reser RU MN Woy os th ccna cgncnvvusasesesantbanianiors LS

Statutes

Uniform Code of Military Justice, 10 U.S.C. § 801

et seq.:

10 U.S.C. § 866 (Article 66) ..............-..... passim

PTT, © Oe GPEICIG GTP vsniccssccescrvecces passim

tO U.5.C. § S67a CArticle Glad ...:.....cecssescceseees 24

Ceara Sieg ee ie oe 1, 24

Military Justice Act of 1983, Pub. L. No.

ge Rg Bo 2 ae & | *, SE a re ann rie 2a

Congressional Materials

Hearings on H.R. 2498 Before a Subcommittee

of the House Committee on Armed Services,

Re ES OD yg ccanvnssxescerevsvonsessincissbinuasee 17

Hearings on S. 857 and H.R. 4080 Before a

Subcommittee of Senate Committee on

Armed Services, 81st Cong., Ist Sess.

ccs pedacabendavdesns 19

H.R. REP. No. -491 (1949) eee a ere ....16

ag Sip pea ER OE a dee a Nema AD Aan 16

Rule Ss

ee EDD .. cscuccevavnanceccaccccssecee 25

Rules Changes, 69 M.J. 159 (C.A.A.F. 2010)...... 25

U.S. Court of Appeals for the Armed Forces

Proposed Rules Changes, 75 Fed. Reg. 8682

(proposed Feb. 19, 2010) (adopted May 5,

EGER ss et 24, 25

Other Authorities

Bennett Boskey & Eugene Gressman, 7he

Supreme Court's New Certiorari Jurisdiction

Over Military Appeals, 102 F.R.D. 329

ae os asic cal inaxsiaay caveieiicneeiis 23

Petition for Writ of Certiorari, United States v.

Denedo, 129 S. Ct. 2213 (2009) (No. 08-

sc ecunees 6, 20, 22

WEBSTER’S THIRD NEW INTERNATIONAL

NE SF .tvacasnsacrscesesecsescauecdcoreancae 13

PETITION FOR WRIT OF CERTIORARI

Senior Airman Michael T. Nerad, United States

Air Force, respectfully petitions for a writ of

certiorari! to review the judgment of the United

States Court of Appeals for the Armed Forces in

this case.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Armed Forces (App. la-48a) is

reported at 69 M.J. 138. The order of the United

States Court of Appeals for the Armed Forces

denying Petitioner’s motion to dismiss (App. 49a-

50a) is reported at 68 M.J. 205. The opinion of the

United States Air Force Court of Criminal Appeals

(App. 5la-64a) is reported at 67 M.J. 748. The

order of the United States Air Force Court of

Criminal Appeals denying reconsideration and

reconsideration en banc (App. 65a-66a) is

unreported.

JURISDICTION

The Court of Appeals for the Armed Forces’

judgment was entered on July 27, 2010. This

Court’s jurisdiction is invoked under 28 U.S.C. §

1259(3).

©)

STATUTES INVOLVED

Articles 66 and 67 of the Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 866, 867, are set out in

Appendix E.

STATEMENT

This case concerns the statutory limitations that

Congress placed on the authority of the Court of

Appeals for the Armed Forces (CAAF) when

reviewing certain intermediate military appellate

court decisions.

1. Petitioner, a senior airman in the United

States Air Force, was charged with a variety of

court-martial offenses. App. 2a. Four of them—

consensual sodomy, possession of child pornography,

adultery, and an_- order violation—involved

Appellant’s conduct with Ms. GL, a 17 year old with

whom he was having a consensual extramarital

affair. The child pornography offense arose from his

possession of sexually explicit images of his

paramour (some including sex acts involving the two

of them) that she had e-mailed to him. At a general

court-martial, Petitioner pleaded guilty to various

charges, including the four involving Ms. GL. See

App. 52a, 58a. He was convicted of the offenses to

which he pleaded guilty and sentenced to a

dishonorable discharge, confinement for twelve

months, forfeiture of all pay and allowances, a

reprimand, and reduction to the lowest enlisted

rank. App. 52a.

2. The Air Force Court of Criminal Appeals set

aside and dismissed the child pornography

conviction while affirming the remaining convictions

and the sentence. App. 5la-64a. Although the Air

Force Court concluded that Petitioner “was

technically in violation of the prohibitions on child

pornography,” he “was in the unique position of

having a relationship with someone he could legally

see naked and, but for his existing marriage, legally

have sex with, but could not legally possess nude

pictures of her that she took and sent to him.” App.

58a. Using its statutory authority to set aside

findings of guilty for reasons other than legal error,

the Air Force Court dismissed the child pornography

conviction because it “unreasonably exaggerates the

criminality of his conduct.” App. 63a. After the Air

Force Court denied the United States’ motion for

reconsideration and reconsideration en banc, App.

65a-66a, the Judge Advocate General of the Air

Force certified the case for review by CAAF.

3. Petitioner moved to dismiss the certification

because the UCMJ precludes CAAF from acting with

respect to a finding of guilty that a Court of Criminal

Appeals neither affirmed nor set aside as incorrect in

law. CAAF summarily denied that motion. App.

49a-50a.

4. Upon plenary review, CAAF set aside the Air

Force Court’s decision and remanded the case for

further review. App. 28a. The majority opinion

addressed Petitioner’s jurisdictional challenge.

Article 67(c) of the UCMJ provides that CAAF “may

act only with respect to the findings ...as...

affirmed or set aside as incorrect in law by the Court

of Criminal Appeals.” 10 U.S.C. § 867(c) (2006).

Nevertheless, CAAF concluded that it had the

authority to set aside the Air Force Court’s reversal

of the child pornography conviction, reasoning

In United States v. Leak, 61 MJ. 234

C.A.A.F. 2005), we observed that this Court.

since the early days of the UCMJ, has

reviewed lower court decisions under Article

67(a)(2), UCMJ, for compliance with the law,

and we have not confined corrective action to

those cases found by the lower court to be

“incorrect in law.” See id. at 239-42; see also

| United States v. Quiroz, 55 M.J. 334, 338-39

(C.A.A.F. 2001)] (rejecting a factor the CCA

used in conducting the unreasonable

multiplication of charges analysis and

remanding for the CCA to apply the correct

factor); United States v. Thompson, 2 C.M.A

460, 464, 9 C.M.R. 90, 94 (1953) (reversing a

CCA’s’ factual sufficiency determination

because it misapprehended’_ the — legal

elements of the offense, and remanding for

the CCA to conduct a new factual sufficiency

review using the appropriate elements).

Rather, the power to review a case under

Article 67(a)(2), UCMJ, includes the power to

order remedial proceedings, such as a

remand, to ensure that the lower court

reviews the findings and sentence approved

by the convening authority in a manner

consistent with a “correct view of the law.”

See Leak, 61 M.J. at 242 (citation and

quotation marks omitted).

App. 24a-25a.

The majority proceeded to analyze the Air Force

Court’s reversal of the child pornography conviction

CAAI found that it could not discern the basis on

which the Air Force Court exercised its Article 66(c)

authority. App. 25a-26a. CAAF concluded that iJ

the Air Force Court set aside the conviction as a

matter of clemency, on equitable grounds, or because

it believed prosecutorial discretion should not have

been exercised to pursue the charge, tt acted

improperly. App. 23a. But CAAF also suggested,

without expressly holding, that it would be

permissible for the Air Force Court to set aside the

conviction if it “identiflied] tangible factors, either by

reference to other charges in the case or by reference

to other cases, that led it to conclude that the finding

‘unreasonably exaggerateld! the criminality of the

conduct, or any factor that caused the charge, albeit

lawful, to constitute an abuse of prosecutorial

discretion.” App. 25a°26a (nternal = citations

omitted).

Judge Baker concurred in the result, but did not

address the jurisdictional issue App. 27a-28a

While suggesting that the Air force Court had

impermissibly acted as a matter of clemency, he

supported remanding the case to the Air Force Court

“to explain its reasoning.” App. 28a

Judge Stucky dissented. App. 28a-48a He

“agreeld| with the majority that we have jurisdiction

over this case.” App. 30a. However, he would have

ordered the child pornography conviction reinstated

on the ground that the Air Force Court had no

authority to set aside a legally and_ factually

sufficient finding of guilty. App. 48a

REASONS FOR GRANTING THE PETITION

CAAF violated a clear congressional limitation

on its jurisdictional authority. Without explaining

how its action could be reconciled with the pdeviry

language of its jurisdiction granting statute, CAA

justified its approach by observing that it has taken

imilar actions in the past That is) true suit

running through a red lhght is not justified by having

made a habit of doing so. The reality that CAAF has

often exceeded its statutory jurisdiction makes thi

case more certworthy. Certiorar: 1s appropriate to

assess CAAF’s pattern of doing that which the plain

language of its jurisdiction: yranting statute forbid

This Court does not often tssue writs of certiorar!

to CAAF gut the two most recent plenary reviews

of CAAF decisions have both concerned claims by the

United States that CAAK exceeded its) statutor

jurisdiction “United States v. Denedo, 129 S. Ct

2213 (2009); Clinton v. Goldsmith, 526 U.S. 529

(1999). While this Court upheld CAAF’s exercise of

jurisdiction in the more recent of the two case

Petitioner agrees with the United States’ assertion

that CAAF ha issued a long tine of case

“expandiing} i role beyond = it congressionally

prescribed jurisdiction.’ Petition for Writ of

Certiorari at 24, United States v. Denedo, \29 8. Ct

2218 (2009) (No. 08-267), 2008 Wh, 56938433

lhereinafte: Denedo Certiorari Petition Cjranting

review 1s appropriate to return CAAF LO if

Latutorily prescribed jurisdictional limit

I. CAAF has no jurisdiction to act with respect

to a finding of guilty that was set aside and

dismissed by a Court of Criminal Appeals on

a ground other than legal error

As an Article I court, CAAF is strictly limited to

the jurisdiction Congress gave it. Congress limited

CAAF to acting only with respect to findings of

guilty that were either affirmed by a Court of

Criminal Appeals or set aside by a Court of Criminal

Appeals as incorrect in law. The finding of guilty to

the child pornography offense was neither affirmed

by the Air Force Court of Criminal Appeals nor set

aside as incorrect in law. CAAF, therefore, was

statutorily forbidden from acting with respect to that

finding. CAAF erred by nevertheless setting aside

the Air Force Court of Criminal Appeals’ decision

with respect to the child pornography offense and

remanding the case for further consideration of that

offense.

A. Article 67(c)’s plain language forbids

CAAF from acting with respect to

findings that a Court of Criminal

Appeals set aside on a basis other than

legal error

Article 67(c)’s plain language states that CAAF

may not act with respect to a finding of guilty that

was set aside by a Court of Criminal Appeals on a

ground other than legal error. Article 67(c) provides

that “lijn any case reviewed by it, the Court of

Appeals for the Armed Forces may act only with

respect to the findings and sentence as approved by

the convening authority and as affirmed or set aside

as incorrect in law by the Court of Criminal

Appeals.” Art. 67(c), UCMJ, 10 U.S.C. § 867 (2006).

This case fell outside that congressional grant of

authority.

The child pornography conviction was neither

“affirmed” nor “set aside as incorrect in law.” /d@ On

the contrary, the Air Force Court expressly noted

that “we find no legal error.” App. 59a. The CAAF

majority did not dispute that the Air Force Court set

aside the conviction on a ground other than legal

error. Nor did the majority dispute that the Air

Force Court possesses legal authority to set aside

convictions on grounds other than legal error. While

the majority questioned whether the Air Force Court

acted on a proper basis 1n exercising its power to set

aside a finding on a ground other than legal error,

Article 67(c) plainly precluded CAAF from taking

any action with respect to the child pornography

conviction. Article 67(a)(2) required CAAF to review

the record upon certification by the Judge Advocate

General of the Air Force. 10 U.S.C. § 867(a)(2)

(2006). But Article 67(c) jurisdictionally precluded

CAAF from acting with respect to the child

pornography offense because the Air Force Court

had set aside that conviction on a basis other than

legal error.

B. CAAF’s precedent cannot expand Article

67(c)’s plain language

In neither its order denying Petitioner's motion

to dismiss (App. 49a-50a) nor its opinion below (see

App. 24a-25a) did CAAF analyze the plain language

of its jurisdiction-granting statute. Instead, CAAF

concluded it had jurisdiction to rule as it did by

applying its divided opinion in United States v.

Leak, 61 M.J. 234 (C.A.A.F. 2005), which did include

a textual analysis of Article 67(c). See 24a-25a.

Because the lower court relied on Leak to attempt to

establish its jurisdiction, a detailed analysis of Leak

is necessary.

Leak was a 4-1 opinion in which the majority

and Chief Judge Gierke’s dissent differed over a

jurisdictional question. In Leak, the Army Court of

Criminal Appeals had exercised its Article 66(c)

power to set aside a rape conviction because the

evidence was. factually insufficient and instead

affirmed a finding of guilty to the lesser included

offense of indecent assault. United States v. Leak,

58 M.J. 869 (A. Ct. Crim. App. 2003). The Court of

Appeals for the Armed Forces found that the Army

Court’s rationale for concluding that the evidence

was factually insufficient to constitute rape was

“susceptible to two interpretations, one correct in

law and the other not.” Leak, 61 M.J. at 248. The

majority set aside the Army Court’s decision and

remanded the case for further consideration. /d. at

249. Chief Judge Gierke dissented, pointing to

Article 67(c)'’s language that “liln any case reviewed

by it,” CAAF “may act only with respect to the

findings and sentence... as affirmed or set aside as

incorrect 1n law by the Court of Criminal Appeals.”

Id. at 249 (Gierke, C.J., concurring in part/dissenting

in part) (quoting 10 U.S.C. § 867(c)) (emphasis

supplied by Gierke, C.J.). Chief Judge Gierke

concluded that under Article 67(c)’s plain language,

‘in a case where a Court of Criminal Appeals sets

aside a finding on factual insufficiency grounds,

rather than on legal grounds, we have no power to

‘act’ on that finding. Such a ruling of the Court of

Criminal Appeals is final.” Jd.

The Leak majority observed that Article 67(c)’s

plain language could be construed to mean that

when a Court of Criminal Appeals sets aside a

finding using its special Article 66(c) powers rather

than because the conviction is “incorrect in law,”

“this Court is without authority to ‘act.” 61 M.d. at

239. That is, indeed, the plain meaning of Article

67(c)’s text. But the Leak majority then proposed an

alternative way CAAF’s jurisdiction-granting statute

“might be read.” /d. The majority said that Article

67(c)’s final sentence—which provides that CAAF

“shall take action only with respect to matters of

law’ —“might be read narrowly to require this Court

to take action in all certified cases with respect to

matters of law.” /d. Having created an ambiguity

with this implausible interpretation of Article 67(c)’s

final sentence, the Leak majority proceeded to use

extratextual sources to support a construction of

Article 67(c) that was far broader than its plain

language.

Kven if the Leak majority's alternative reading

of Article 67(c)’s final sentence were plausible, the

mere existence of a possible alternative reading

would not justify resorting to extratextual sources.

Rather, a court confronted with two differing

interpretations of a statute must compare them to

determine whether one is “more natural” than the

other. See Fla. Dept of Revenue v. Piccadilly

Cafeterias, 128 S. Ct. 2326, 2332 (2008). If the law

were otherwise—if any possible alternative reading

of a statute were sufficient to create an ambiguity

justifying resort to extratextual sources—then a

statute’s plain language would lose its primacy in

the statutory construction process. It would be the

rare case in which a court seeking to construe its

own powers expansively could not identify some

alternative manner in which.a statute “might be

read.” Leak, 61 M.J. at 239. Statutes’ plain

language will continue to be the primary focus of

statutory construction only if resort to extratextual

sources 1s limited to instances where two alternative

interpretations of a statute are both facially

reasonably plausible. Article 67(c)’s plain language,

however, permits only one plausible interpretation.

Article 67(c) begins by expressing a limitation on

CAAF’s authority: “In any case reviewed by it,”

CAAF “may act only with respect to the findings and

sentence as approved by the convening authority and

as affirmed or set aside as incorrect in law by the

Court of Criminal Appeals.” Art. 67(c), UCMJ, 10

U.S.C. § 867(c). This language establishes that

CAAF may “act” only on certain findings: those

approved by the convening authority and affirmed or

set aside as incorrect in law by the Court of Criminal

Appeals. Article 67(c) thus forbids CAAF from

“actling!” on findings disapproved by the convening

authority or set aside by a Court of Criminal Appeals

on a basis other than being “incorrect in law.”

Article 67(c)’s next sentence provides that “fi]n a

case which the Judge Advocate General orders sent

to” CAAF, “that action need be taken only with

respect to the issues raised by him.” Jd. That

sentence’s reference to “that action” clearly refers to

the previous sentence’s use of the word “act,” which

is limited to findings that a Court of Criminal

Appeals has either affirmed or set aside as incorrect

in law. The second sentence does not expand the

first sentence’s authorization to act; rather, it

addresses the scope of CAAF’s review in executing

the authority provided by the first sentence.

Article 67(c)’s third sentence is similar: “In a

case reviewed upon petition of the accused, that

action need be taken only with respect to issues

specified in the grant of review.” Jd. Once again,

“that action” clearly refers to Article 67(c)’s first

sentence’s limited authority to “act.”

Article 67(c)’s final sentence provides that CAAF

“shall take action only with respect to matters of

law.” Jd. This sentence is another limitation on

CAAF’s authority to act. It uses the same word,

“action,’ that the previous two sentences use.

Congress no doubt intended that word to have the

same meaning in Article 67(c)’s fourth sentence that

it has in Article 67(c)’s second and third sentences.

See Commr v. Keystone Consol. Indust., 508 U.S.

152, 159 (1993) (‘It is a normal rule of statutory

construction that identical words used in different

parts of the same act are intended to have the same

meaning.” (internal quotation marks and citation

omitted)). Article 67(c)’s fourth sentence cannot

plausibly be read as a grant of additional authority

beyond that provided by the section’s first sentence.

Indeed, to read the fourth sentence as allowing

CAAF to act on a finding that a Court of Criminal

Appeals set aside on a basis other than being

“incorrect in law” would be flatly inconsistent with

Article 67(c)’s first sentence. Surely Congress did

not include two mutually inconsistent sentences

within a single section of a UCMJ article. See, e.g.,

Freeman v. Gonzales, 444 F.3d 1031, 1039 (9th Cir.

2006) (observing that courts “should interpret

statutes to be coherent and internally consistent”).

Even absent Article 67(c)’s second and third

sentences, Article 67(c)’s final sentence would clearly

convey a limitation on CAAF’s authority, not a

requirement that it take certain actions. ‘The

alternative way that Leak suggests Article 67(c)’s

final sentence “might be read” is “to require this

Court to take action in all certified cases with

respect to matters of law.” 61 M.J. at 239. But that

interpretation of the sentence is hardly “natural”

because of its use of the word “only.” See Fla. Dept

of Revenue, 128 S. Ct. at 2332. When used as an

adverb, “only” is synonymous with “solely” and

“exclusively.”. WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1577 (2002). Substituting one of these

synonyms for “only,” Article 67(c)’s final sentence

would read, “The Court of Appeals for the Armed

Forces shall take action solely with respect to

matters of law.” This language is a limitation on the

kinds of actions that CAAF may take, not an edict

that it must take certain kinds of actions.

A comparison of Article 66(c) with Article 67(c)

reaffirms that plain language interpretation. Article

66(c) gives the Courts of Criminal Appeals unusually

broad powers. A Court of Criminal Appeals “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.” 10 U.S.C.

§ 866(c). Article 66(c)’s final sentence authorizes the

Courts of Criminal Appeals to exercise an unusually

robust standard of review: they “may weigh the

evidence, judge the credibility of witnesses, and

determine controverted questions of fact, recognizing

that the trial court saw and heard the witnesses.”

Td. The obvious purpose of Article 67(c)’s final

sentence, which states that CAAF “shall take action

only with respect to matters of law,” is to make clear

that CAAF does not have the same broad powers

that Congress gave to the Courts of Criminal

Appeals. The Leak majority’s view that that

sentence can be read as_ broadening CAAF’s

authority rather than limiting it is thus inconsistent

not only with the sentence’s plain language, but also

with Congress’s entire statutory scheme for military

appellate review.

As Chief Judge Gierke indicated in his Leak

dissent, the only plausible reading of Article 67(c) is

the first possible reading suggested by the Leak

majority: that where a Judge Advocate General

certifies an issue concerning a finding set aside by a

Court of Criminal Appeals on a basis other than

being “incorrect in law,” CAAF has “no statutory

authority to ‘act.” 61 M.J. at 249 (Gierke, C.J.,

concurring in part/dissenting in part). Article 67(c)’s

plain language thus precluded CAAF from setting

aside the Air Force Court’s reversal of Petitioner’s

child pornography conviction.

Kven if there were two facially plausible

interpretations of Article 67(c), CAAF should have

applied the canons of statutory construction “as a

means of choosing between them.” Clark vy.

Martinez, 543 U.S. 371, 384 (2005) (emphasis

removed) (applying ‘anon of constitutional

avoidance). “[E]stablished principles of statutory

construction mandate... a narrow interpretation of”

an Article I court’s jurisdiction-granting statute.

Bowen v. Massachusetts, 487 U.S. 879, 908 n.46

(1988) (quoting Delaware Div. of Health & Social

Services v. Dep't of Health & Human Services, 665

F. Supp. 1104, 1117-18 (D. Del. 1987)). An Article I

court “is a court of limited jurisdiction, because its

jurisdiction is statutorily granted and it is to be

strictly construed.” Jd. (quoting Delaware Div. of

Health & Social Services, 665 F. Supp. at 1118); see

also Goldsmith, 526 U.S. at 535 (“the CAAF’s

independent statutory jurisdiction is narrowly

circumscribed”); Denedo, 129 S. Ct. at 2221 (“[i]t is

for Congress to determine the _ subject-matter

jurisdiction of federal courts. ... This rule apples

with added force to Article I tribunals, such as the

NMCCA and CAAF, which owe their existence to

Congress’ authority to enact legislation pursuant to

Art. I, § 8 of the Constitution.”). Under the

“established principlel] of statutory construction”

mandating a “narrow interpretation” of Article

67(c)’s jurisdictional grant, see Bowen, 487 U.S. at

908 n.46, CAAF should have adopted the narrower of

two potential interpretations of Article 67(c). Under

that narrower interpretation, CAAF had _ no

authority to act on a finding that a Court of Criminal

Appeals set aside on a basis other than _ being

“incorrect in law.”

In direct contravention of that principle, the

Leak majority opined that “we believe it axiomatic

that Article 67 must be interpreted in light of the

overall jurisdictional concept intended by the

Congress, and not through the selective narrow

reading of individual sentences within the article.”

Leak, 61 M.J. at 239. The Leak majority then

reviewed the UCM ’s legislative history. Nothing in

that legislative history, however, supports the

conclusion that Congress intended to grant CAAF

power to act where a Court of Criminal Appeals set

aside a finding of guilty 9n a basis other than legal

error. First, the Leak majority quoted an identical

portion of both the House and Senate Armed

Services Committees’ 1949 reports on what would

become the UCMJ:

The Court of Military Appeals las CAAF was

originally known] takes action only with

respect to matters of law .... It may act only

with respect to the findings and sentence as

approved by the convening authority. If the

Board of Review lone of the Courts of

Criminal Appeals’ predecessors] has set

aside a finding as against the weight of the

evidence this decision cannot be reconsidered

by the court. If, on the other hand, the

Board has set a case aside because of tne

improper introduction of evidence or because

of other prejudicial error, the Court of

Military Appeals may reverse if it finds there

has been no such error.

H.R. REP. No. 81-491 at 32 (1949) (emphasis added

by CAAF); S. REP. NO. 81-486 at 29 (1949) (emphasis

added by CAAF). The Leak majority construed this

language as suggesting “that with respect to findings

of factual insufficiency, as long as a Judge Advocate

General's certified question raises a legal issue other

than a complaint as to the manner in which the

lower court weighed the evidence, this Court shall

review that claim.” 61 M.J. at 240. That meaning,

however, hardly seems apparent in the quoted

language.

The Leak majority continued, “Further, the

legislative history indicates that Congress

contemplated that this Court and not the lower

courts would decide whether a claim presents a

question of law or fact, and that with respect to

questions of law, this Court would determine

whether the lower court engaged in an erroneous

application of the law.” /d. (citing Hearings on HB.

2498 Before a Subcommittee of the House

Committee on Armed Services, 81st Cong. 609 (1949)

(statement of Prof. Edmund M. Morgan Jr.,

Chairman of UCMJ drafting committee)). That

uncontroversial principle is irrelevant to this case

because there is no question that the Air Force Court

set aside and dismissed _ Petitioner's child

pornography conviction on a basis other than being

incorrect in law. Neither the CAAF majority nor

either of the separate opinions contended otherwise.

So CAAF’s authority to review a legal ruling that a

Court of Criminal Appeals mischaracterizes as an

exercise of its special Article 66(c) authority is not

implicated here.

That is the extent of the legislative history cited

by the Leak majority. That legislative history does

not support CAAF’s authority to set aside the Air

Force Court’s opinion in this case, much less warrant

departing from the most natural plain language

interpretation of Article 67(c).

The Leak majority next turned to CAAF’s own

precedent. 61 M.J. at 240-41 (citing United States v.

Thompson, 2 C.M.A 460, 9 C.M.R. 90 (1953); United

States v. Bunting, 6 C.M.A. 170, 19 C.M.R. 296

(1955)). This portion of the opinion demonstrated

that CAAF had previously taken action where a

board of review’s decision was based on its unique

Article 66(c) authority rather than on a finding of

legal error. Thompson, however, did not even

address Article 67’s language limiting the Court of

Military Appeals’ authority to act, much less explain

how it could be construed to allow the Court of

Military Appeals to act with respect to a finding that

a board of review had set aside as_ factually

insufficient. Bunting advanced the unremarkable

principle, discussed above, that “a board of review

may not permissibly defeat review in this Court by

labeling a matter of law, or a mixed holding of law

and fact, as a question of fact.” Bunting, 19 C.M.R.

at 299, 6 C.M.A. at 173.

Finally, the Leak majority justified its action

based on what it characterized as “the overall intent

of Article 67—to grant this Court jurisdiction to

decide matters of law raised by appellants or

certified by Judge Advocates General.” 61 M.J. at

242. The Leak majority fails to indicate where

Congress manifested such an “overall intent” which,

as discussed above, goes beyond Article 67’s plain

meaning. So neither Leak nor the authorities it

cited provided a sound basis for concluding that

Article 67(c) can fairly be interpreted as providing

CAAF with jurisdiction to reverse a Court of

Criminal Appeals’ exercise of its expansive Article

66(c) authority.

Beyond Leak and Vhompson, CAAFK'’s Nerad

opinion below cited only one authority in_ its

discussion of the jurisdictional issue CAAF’s

decision in United States v. Quiroz, 55 M.J. 334

(C._A.A.F. 2001). In Quiroz, however, CAAF did not

even cite Article 67(c), much less explain how it

could be construed to allow CAAF to overturn a

Court of Criminal Appeals’ exercise of its unique

authority under Article 66(c). Qurroz thus adds

nothing to CAAF’s jurisdictional analysis in Nerad.

other than providing another instance in_ which

CAAIK exceeded its own jurisdictional limitations.

While Petitioner maintains it is unnecessary to

consult Article 67(c)’s legislative history because the

statutory language is plain, that legislative history

includes an interpretation of Article 67 inconsistent

with CAAF’s conclusion below regarding © it

jurisdictional reach, In 1949, in his” written

statement to the Senate Armed Services Committee,

Judge Advocate General of the Army Major General!

Thomas H. Green observed that if a board of review

did precisely what the Air Force Court did in this

case---decline to approve a finding of guilty under its

unique Article 66(c) authority —the board’s ruling

“would be absolutely final. [| could not appeal that

case to the Court of Military Appeals because the

board’s determination would not be based on a

question of law.” Hlearings on S. 857 and I1.R. 4080

Before a Subcommittee of Senate Committee on

Armed Services, 8\st Cong., Ist Sess. 258 (1949)

(statement of Major General Green, Judge Advocate

General of the Army). So Petitioner’s plain language

interpretation of Article 67(c) is not some

anachronistic 21st Century construction of a 60

year‘old statute; rather, a high-level Executive

Branch official whose Department was _ directly

affected by the lepislation made the same = plain

language mterpretation when the bill adopting that

language was before Conyress in 1949

Il. The Question Presented is important and

warrants this Court’s review

Just as the Umited States asserted in its

certiorart petition in| Denedo, “This case concerns a

matter of fundamental importance with respect to

the authority of the military courts created by

Congress.” Denedo Certioran Petition, supra, at 2)

Granting review 1s appropriate to ensure that CAAF

does not judicially expand the limited jurisdiction

Conpress vave it

A. CAAF has engaged in a pattern of

construing its jurisdiction-granting

statute overbroadly

In its Denedo petition for certiorari, the United

States noted a number of cases in which CAAF had

exceeded its statutory authority Id. at 24-25. One

of those cases was United States vo Lopez de

Victoria, 66 M.J. 67 (C_LALA.F. 2008), a 8 2 decision in

which the majority held CAAF had jurisdiction to

review decisions of the Courts of Criminal Appeals in

interlocutory = prosecution appeals despite the

absence of any statutory languaye authorizing such

review. Another was Areutzer v. United States, 60

M.J. 453 (CLA.A.F. 2005), a 4-1 decision in which the

majority held CAAF could tissue a writ of mandamus

to compel military corrections officials to change the

petitioner's confinement status in apparent violation

of the jurisdictional limits recognized by Clinton vy.

Goldsmith, 526 U.S. 529 (1999). Other divided

opinions in- which CAAF has interpreted its

jurisdictional authority overexpansively — include

United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005),

discussed above, and United States v. Wuterich, 67

M.J. 63 (C.A.A.F. 2008), cert. denied, 130 S. Ct. 52

(2009), a 3-2 decision in which CAAF construed a

statute authorizing interlocutory prosecution

appeals of rulings excluding evidence to allow the

prosecution to appeal a subpoena’s quashal.

Even since announcing its decision in this case,

CAAF has continued to expand its jurisdictional

reach. Three weeks after issuing its opinion below,

CAAF denied a motion to dismiss a certificate for

review in which the Judge Advocate General of the

Air Force sought reversal of an Air Force Court. of

Criminal Appeals decision reducing a court-martial

sentence based on its unique Article 66(c) authority

to affirm only “such part or amount of the sentencel]

as it finds correct in law and fact and determines, on

the basis of the entire record, should be approved.”

United States v. Humphries, __ M.J. __, No. 10>

5004/AF (C.A.A.F. Aug. 17, 2010) (order). The denial

of that motion to dismiss was a departure from

CAAF’s previous interpretation of its appellate

jurisdiction, which held that “[tlhe exercise by a

board of review of its discretionary and fact-finding

function of determining the appropriateness of an

adjudged sentence may not be utilized as a basis for

creating a certified question reviewable by this

Court.” United States v. Turner, 15 C.M.A. 438, 439,

35 C.M.R. 410, 411 (1965). This jurisdictional

expansionism further suggests the appropriateness

of granting certiorari.

In its decision below, as in a number of other

cases, CAAF forayed beyond its jurisdictional

boundaries. Just as the United States urged in its

Denedo petition for certiorari, “This Court’s

intervention 1s warranted, once again, in order to

confine the CAAF to its statutory jurisdiction.”

Denedo Certiorari Petition, supra, at 25.

B. Certiorari is appropriate despite this

case’s interlocutory posture

The importance of the. Question Presented

makes granting certiorari appropriate despite this

case’s interlocutory status. Granting certiorari now

is particularly appropriate due to a unique limitation

on this Court’s certiorari jurisdiction over military

justice cases. Even if the Air Force Court were to

affirm Petitioner's child pornography conviction

upon remand from CAAF, this unique jurisdictional

limitation could prevent this case from returning to

this Court.

This Court has granted certiorari to review

jurisdictional challenges in other military justice

cases despite their interlocutory nature, including at

the United States’ request in the recent Denedo

case. Certiorari is similarly appropriate here to

review the CAAF’s decision on an important issue

concerning the military appellate courts’ jurisdiction.

This Court granted the United States’ petition

for certiorar1 in Denedo even though CAAF had

remanded the case for further proceedings that

might have resulted in the denial of former-Petty

Officer Denedo’s petition for a writ of error coram

nobis. Un:rted States v. Denedo, 129 S. Ct. 622

(2009). Similarly, in Solorio v. United States, this

Court granted certiorari to review a subject-matter

jurisdiction challenge to Petty Officer Solorio’s court-

martial even though the Court of Military Appeals

(as CAAF was known at the time) had remanded the

case for tral, which could have resulted in the

petitioner's acquittal. So/orio v. United States, 476

U.S. 1181 (1986). Here, too, the question presented

is sufficiently important to consider regardless of the

possibility that Petitioner might obtain relief from

the Air Force Court upon remand.

Another consideration supports exercising

jurisdiction now despite the case’s interlocutory

status: this case might never again fall within this

Court’s certiorari jurisdiction even if the Air Force

Court were to affirm Petitioner’s child pornography

conviction upon remand. This might be petitioner's

only opportunity to ask this Court to review and

correct CAAF’s exercise of jurisdiction it did not

possess.

Those tried by courts-martial may be the only

criminal defendants in the United States who do not

have a guaranteed path to this Court upon

conviction. See Bennett Boskey & Eugene

Gressman, JVhe Supreme Court's New Certiorari

Jurisdiction Over Military Appeals, 102 F.R.D. 329,

337 (1984). Before enactment of the Military Justice

Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393, this

Court had no certiorari jurisdiction over direct

appeals of court-martial convictions. See Boskey &

Gressman, supra, 102 F.R.D. at 329. But even

since 1983, this Court’s certiorari jurisdiction is

limited in a manner that excludes most court-

martial convictions from its reach. ‘This Court has

statutory certiorari jurisdiction over cases in which

CAAF reviewed a death sentence, cases that one of

the four Judge Advocates General certified to CAAF,

cases in which CAAF granted the defendant's

petition for review, and cases in which CAAF issued

some form of extraordinary rehef. 28 U.S.C. § 1259

(2006). If the Air Force Court were to deny

Petitioner relief upon remand and CAAF were to

then deny his petition for review, Petitioner would

be precluded from seeking certiorari, leaving him

without effective recourse to challenge CAAF's

opinion below authorizing the reinstatement of his

child pornography conviction. See Article 67a(a),

UCMJ, 10 U.S.C. § 867a(a) (2006) (“The Supreme

Court may not review by a writ of certiorari under

this section any action of the Court of Appeals for

the Armed Forces in refusing to grant a petition for

review.”).

The danger that Petitioner might be precluded

from seeking certiorari following a remand is

heightened by a recent change in CAAIF’s practice.

As CAAF noted earlier this year, before a recent

change to its rules, its practice had been to grant the

petition of a defendant seeking a second review after

an initial remand to a Court of Criminal Appeals.

U.S. Court of Appeals for the Armed Forces Proposed

Rules Changes, 75 Fed. Reg. 8682, 8683 (proposed

Feb. 19, 2010) (adopted May 5, 2010). As CAAF

explained, the purpose of that policy was “to protect

the right to seek certiorari review at the Supreme

Court.” Jd. But CAAF recently amended its rules to

“make it clear that there is no right to further review

lby CAAF] in all remanded cases.” Jd. Under

CAAF’s recently revised rule, when a defendant files

a petition seeking CAAF’s review of a case that it

had previously remanded, the petition must specify

“the issue or issues on which certiorari review would

be sought, whether related to the remand or to the

original decision by this Court.” C.AAF. fi.

21(bM5G); see Rules Changes, 69 MJ. 159

(C.A.A.F. 2010). So if, upon remand, the Air Force

Court affirms Petitioner’s child pornography

conviction, CAAF itself will decide whether to allow

Petitioner to file another certiorari petition arguing

that CAAF’s original decision exceeded its statutory

authority. Given the possibility that CAAF would

deny review of Petitioner’s case, thereby foreclosing

another certiorari petition, 1t would be particularly

appropriate for this Court to grant certiorari now.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Dwight H. Sullivan

Counsel of Record

Air Force Appellate Defense

Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-8885

dwight.sullivan@pentagon.af.mil

Colonel Eric N. Eklund, USAF

Chief, Air Force Appellate

Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-1562

eric.eklund@pentagon.af.mil

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

UNITED STATES, Appellant

Vv.

MICHAEL T. NERAD, Senior Airman,

U.S. Air Force, Appellee

No. 09-5006

Crim. App. No. 36994

69 M.J. 138

Argued December 8, 2009

Decided July 27, 2010

RYAN, J., delivered the opinion of the Court, in

which EFFRON, C.J., and ERDMANN, J., joined.

BAKER, J., filed a separate opinion concurring in

the result. STUCKY, J., filed a separate dissenting

opinion.

Counsel

For Appellant: Lieutenant Colonel Jeremy S. Weber

(argued); Colonel Douglas P. Cordova and Gerald R.

Bruce (on brief).

For Appellee: Dwight H. Sullivan, Esq. (argued);

Captain Jennifer J. Raab and Captain Tiffany M.

Wagner (on brief); Mayor Shannon A. Bennett.

Amicus Curiae for Appellant: Co/one/ Norman Fd.

Allen, Mayor Sara M. Root, Captain Sasha N.

Rutizer, and Captain Sarah J. Rykowskyi (on brief)—

for the Army Appellate Government Division.

Amicus Curiae for Appellee: Michelle M. Lindo

McCluer, Jonathan E. Tracy, Hugene FR. Fidell, and

Stephen A. Saltzburg (on brief)—for the National

Institute of Military Justice.

Military Judge: Gary M. Jackson

Judge RYAN delivered the opinion of the Court.

In accordance with his pleas, a general court-

martial, composed of a military judge sitting alone,

found Appellee guilty of failure to obey a lawful

order, wrongful disposition of military property,

larceny, sodomy, possession of child pornography,

and adultery, violations of Articles 92, 108, 121, 125,

and 134, Uniform Code of Military Justice (UCM),

10 U.S.C. §§ 892, 908, 921, 925, 934 (2006). The

military judge sentenced Appellee to a dishonorable

discharge, confinement for twelve months, forfeiture

of all pay and allowances, a reprimand, and a

reduction to the grade of E-l. The convening

authority approved the findings and sentence.

The United States Air Force Court of Criminal

Appeals (CCA) reviewed the case pursuant to Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2006). United

States v. Nerad, 67 M.J. 748, 749 (A.F. Ct. Crim.

App. 2009). Despite concluding that there was no

legal or factual error in the case, it nonetheless set

aside and dismissed the finding of guilty to the child

pornography offense based on the “unique

circumstances” of the case. Jd. at 752-53; see infra

Part I. The court approved the remaining findings

and approved the sentence as adjudged. 67 M.J. at

753.

The Judge Advocate General of the Air Force

certified the case to this Court for review of the

following issue:

WHETHER THE AIR FORCE COURT OF

CRIMINAL APPEALS ERRED IN

NULLIFYING APPELLEE’S FACTUALLY

AND LEGALLY SUFFICIENT

CONVICTION FOR POSSESSION OF

CHILD PORNOGRAPHY.

We hold that while CCAs have broad authority

under Article 66(c), UCMJ, to disapprove a finding,

that authority is not unfettered. It must be

exercised in the context of legal—not equitable—

standards, subject to appellate review. United

States v. Quiroz, 55 M.J. 334, 339 (C.A.A.F. 2001).

Relatedly, while Article 66(c), UCMJ, affords a CCA

broad powers, when faced with a constitutional

statute a CCA “cannot, for example, override

Congress’ policy decision, articulated in a statute, as

to what behavior should be prohibited.” United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S.

483, 497 (2001).

Here, it is unclear from the CCA’s opinion

whether it exceeded its authority by disapproving a

finding with reference to something other than a

legal standard, potentially infringing on the sole

prerogative of the convening authority under Article

60, UCMJ, 10 U.S.C. § 860 (2006), to disapprove a

finding based on purely equitable grounds. It is also

unclear from the CCA’s opinion whether the CCA

abused its discretion by refusing to affirm a finding

because it thought it “unreasonable” to criminalize

such conduct “under the circumstances,” even

though the circumstances fell squarely within the

definition of child pornography crafted by Congress

and referenced by the CCA. 18 U.S.C. § 2256(1)

(2006) (defining “minor” as “any person under the

age of eighteen years”), cited in Nerad, 67 M.J. at

751. Accordingly, the case is remanded for further

proceedings before the lower court.

The facts relevant to the charge and specification

dismissed by the CCA involve a consensual sexual

relationship between Appellee, who was married,

and GL, a seventeen-year-old female. ‘They each

took sexually explicit pictures of one another,

including pictures in which they were engaged in

sexual conduct with each other. Based on his

possession of these sexually explicit pictures of GL,

the Government charged Appellee with possession of

child pornography in violation of Article 134, UCMJ.

Appellee not only did not contest the child

pornography charge at trial, but prior to entering his

pleas he signed a “Notification of Sex Offender

Registration Requirement,” which informed him that

he might be required to register as a sex offender

upon conviction of the charged offense.

In his clemency request to the convening

authority, Appellee asked that the convening

authority set aside the child pornography conviction.

See generally Article 60(c)\Q), UCMJ (providing that

the convening authority may _ exercise “sole

discretion” as a matter of “command prerogative” in

deciding whether to set aside or modify the findings

or sentence); Rule for Courts-Martial (R.C.M.)

1107(c) Discussion (noting that the convening

authority may set aside a finding “for any reason or

no reason”). While acknowledging that he had

committed “a crime,” that the circumstances did not

provide “a defense,” and that he was “in fact, guilty

of this offense,” Appellee requested that the

convening authority take into account the particular

circumstances of his relationship with GL and

“determine [that] a federal conviction for this offense

is not appropriate in my case.” ‘The convening

authority declined to grant this clemency request,

Appellee did not challenge his convictions in his

submission of issues to the CCA under Article 66(c),

UCMJ. Rather, he requested sentence relief through

an Fighth Amendment challenge to the conditions of

his post-trial confinement, a request that the lower

court rejected. Nerad, 67 M.J. at 749-50.

On an issue raised sua sponte, however, the CCA

determined that it had the power to set aside the

child pornography finding even though it could “find

no legal error and the appellant never raised an

issue at trial, pleading guilty to that offense.” /d. at

751. As justification for this action the CCA noted

that Appellee “was in the unique position of having a

relationship with someone he could legally see naked

and, but for his existing marriage, legally have sex

with, but could not legally possess nude pictures

that she took lof herself] and sent to him.” /d. at

751. The CCA concluded that “possession of the

photos under these circumstances is not the sort of

conduct which warrants criminal prosecution for

possessing child pornography and_ that this

conviction unreasonably exaggerates the criminality

of his conduct.” /d. ‘The CCA took particular note of

the fact that a conviction for child pornography

would require Appellee to register as a sex offender

and endure “the significant consequences of such

registration.” Id. at 752, Based upon. these

considerations, the CCA dismissed the finding of

guilty to the child pornography offense, affirmed the

remaining findings, and approved the sentence as

adjudged. /d. at 752-53.

1].

Article 66(c), UCMJ, states, in relevant part,

that 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.” Broken into its constituent parts, this

statutory language provides that a CCA may affirm

only such findings and sentence that it! (1) finds

correct in law; (2) finds correct in fact;! and ©)

determines, on the basis of the entire record, should

' The phrase “correct in law and fact,” Article 66(c),

UCM, is used throughout our cases as synonymous

with legal and factual sufficiency. See, eg, United

States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)

(equating the two while discussing the extent of a

CCA’s power under Article 66(¢), UCM, concluding

that “lal Court of Criminal Appeals may not affirm

the findings and sentence of a court-martial unless it

finds them to be both factually and legally sufficient

Article 66(c), UCMJ”"); see also United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (“The test for

legal sufficlency requires courts to review” the

evidence in the light most favorable to the

Government. Tf any rational trier of fact could have

found the essential elements of the crime beyond a

reasonable doubt, the evidence ts legally sufficient.

The test for factual sufficiency is whether, after

weighing the evidence in the record of trial and

making allowances for not having — personally

observed the witnesses, the court 1s convinced of the

accused’s guilt beyond a reasonable doubt.”)

(citations and quotation marks omitted). The latter

determination is unique to the military justice

system, as it requires a CCA to review the record de

novo and determine whether the accused is guilty

beyond a reasonable doubt

be approved. United States vo Tardif, 57 Mod. 219,

224 (C.A.A.F. 2002). At issue in this case is the

scope and meaning of the “should be approved

lanvuaye. The scope and meaning of Article 666),

UCMJ, is a matter of statutory interpretation, a

question of law revieWed de novo. United States v

Lopez de Victoria, 66 Mad. 67, 78 (CALA LB. 2008)

The parties agree, consistent with our precedent,

that a CCA may approve only that part of a sentence

that at finds “should be approved’! EN* See, ey,

' “In considering the record, it may weigh the

evidence, judge the credibility of witnesses, and

determine controverted questions of fact, recoynizing

that the trial court saw and heard the witnesses.’

Article 664), UCM.

' We note that Jackson v. Taylor, 353 U.S. 569

(1957), does not control the question now before us

because the Supreme Court had no occasion to

address the “should be approved” language of Article

66(¢), UCM, in the context of a sentence that was

correct in law and fact. Jackson itself involved a

situation where the sentence imposed by the court

martial was no longer “correct,” or even lawful,

because the original sentence exceeded the

maximum punishment permissible for the fioading

that remained Id. at 570 In that context the

Supreme Court affirmed the power of a board. of

review the precursor to today’s CCAs to modify a

sentence “in the manner it finds appropriate.” /d at

579. Jackson did not, however, limit boards of

review to acting in instances where a sentence was

not “eorrect.” Instead, at reiterated a broader

United States v. Christopher, 13 C.M.A. 231, 235-36,

32 C.M.R. 231, 235-36 (1962). In reviewing the

exercise of this power, we ask if the CCA abused its

discretion or acted inappropriately-i.e., arbitrarily,

capriciously, or unreasonably-as a matter of law.

See, e.g., United States v. Jones, 39 M.J. 315, 317

(C.M.A.1994) (“We will only disturb the [CCA's]

reassessment lof a sentence] in order to prevent

obvious miscarriages of justice or abuses’ of

discretion.”) (citations and quotation marks omitted);

Christopher, 13 C.M.A. at 236, 32 C.M.R. at 236.

The parties disagree, however, on the scope of a

CCA’s power as to findings. Appellee argues that

“should be approved” means that the CCA has

unfettered discretion to disapprove, for any reason or

no reason at all, a finding that is correct in law and

fact and that the exercise of that discretion is not

subject to appellate review. The Government takes

the opposite position, arguing that if a finding is

correct in law and fact the CCA must approve it.

proposition, consistent with the plain meaning of the

statute: CCAs have the power to affirm only so

much of a sentence as they find “appropriate.” Jd.

In any event, the dissent’s interpretation of Jackson,

United States v. Nerad, 69 M.J. at 151-52 (C.A.A.F.

2010) (Stucky, J., dissenting), is squarely at odds

with this Court’s interpretation. See United States

v. Sills, 56 M.J. 239, 240 (C.A.A.F. 2002); United

States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370,

373 (1959).

10a

Consistent with our case law, we adopt neither

position. See Quzroz, 55 M.J. at 338-39 (permitting

the CCA to disapprove legally and _ factually

sufficient findings but remanding to ensure the

lower court applied a legal as opposed to an

equitable standard); Tardif 57 MJ. at 224

(recognizing that a CCA has discretion under Article

66(c), UCMJ, to fashion an appropriate remedy for

excessive post-trial delay with respect to findings or

sentences that are legally and factually correct).

We begin from the settled premise that in

exercising its statutory mandate a CCA has

discretion to approve only a sentence, or such part of

a sentence, that it “determines, on the basis of the

entire record, should be approved,” Article 66(c),

UCM, even if the sentence is “correct.” See United

States v. Atkins, 8 C.M.A. 77, 79, 23 C.M.R. 301, 303

(1957) (“In short, the criterion for the exercise of the

board of review’s power over the sentence is not

legality alone, but legality limited by

appropriateness.”). Even that broad discretion is not

unfettered, however. See United States v. Lacy, 50

M.J. 286, 287-89 (C.A.A.F.1999) (reviewing a CCA’s

sentence appropriateness determination for abuse of

discretion).

The Government argues that this has no bearing

on the certified question because “should be

approved” has meaning only with respect to a CCA’s

power to disapprove or modify a sentence. We

disagree that “should be approved” has no meaning

lla

with respect to a CCA’s action on findings.

“[Flindings” and “sentence” are grammatically

coupled in Article 66(c), UCMJ, joined equally with

“and determines ... should be approved.” The phrase

“should be approved” must have meaning with

respect to findings as well as sentence and modify

both. When a modifier is set off from a series of

antecedents by a comma, the modifier should be read

to apply to each of those antecedents. Bingham, Ltd.

v. United States, 724 F.2d 921, 925-26 n.3 (11th Cir.

1984); see also, e.g., Elliot Coal Mining Co. v.

Director, Office of Workers’ Comp. Programs, 17

I. 3d 616, 630 (38d Cir. 1994) (“‘[U]lse of a comma to

set off a modifying phrase from other clauses

indicates that the qualifying language is to be

applied to all of the previous phrases and not merely

the immediately preceding phrase.”). Therefore, it is

impossible—based on the statute—-to acknowledge a

CCA’s power to modify or disapprove a “correct”

sentence while disagreeing it has any such power

with respect to a “correct” finding. Nor is such a

view consistent with our limited precedent on this

question. See, e.g., Quiroz, 55 M.J. at 338-39;

United States v. Drexler, 9 C.M.A. 405, 408, 26

C.M.R. 185, 188 (1958).

Despite the statutory text and our case law, the

Government and dissent, Nerad, 69 M.J. at 153-54

(Stucky, J., dissenting), rely on language in United

States v. Waymure, 9 C.M.A. 252, 26 C.M.R. 32

(1958), for the proposition that whatever the CCA’s

power with respect to sentence, the CCA has no

12a

discretion when it comes to approving legally and

factually sufficient findings. The Waymzre Court did

assert that:

Unlike a convening authority, who may

disapprove findings of guilt for any reason,

or for no reason at all, a board of review may

only disapprove such findings as it finds

incorrect in law and fact. It was never

intended that a board of review be given the

power to disapprove findings in _ its

“discretion.”

Id. at 255, 26 C.M.R. at 35 (citation omitted). But in

that case the board of review sidestepped the legal

issues entirely, acting instead in a manner “not

unlike an arbitration or mediation board designed to

effect an adequate and satisfactory compromise

between negotiating parties.” /d. at 254, 26 C.M.R.

at 384. On appeal, the Judge Advocate General of the

Army asked this Court to consider “whether a board

of review had the power to set aside findings of guilt

without first deciding whether the court-martial had

jurisdiction, or whether such findings were incorrect.

in law and fact.” /d. at 253, 26 C.M.R. at 33. This

Court held that the board did not have such a power,

stating that “in setting aside the torgery conviction

solely on the basis of ‘substantial justice,’ [the board

of review] exceeded the scope of its authorized

statutory functions.” /d. at 255, 26 C.M.R. at 35. We

did not present a holding on what the words “should

be approved” entailed in the context of a board’s

action on legally and factually sufficient findings—

nor could we, since the board had not even

13a

attempted to undertake such sufficiency

determinations. Our use of the phrase “substantial

justice” served to reject the board’s assumption that

its function was to forge an equitable compromise

between the _ parties. Waymire thus serves as

precedent for the unremarkable proposition that

CCAs may not disapprove findings on equitable

grounds or disregard their statutory duty to

determine legal and factual sufficiency.

Further, the language the Government and the

dissent draw from Waymire has not functioned in

practice as precedent on the question whether the

CCAs may disapprove findings that are correct in

law and fact. Indeed, one month after Waymrre,

this Court decided Drex/er with language suggesting

that intermediate courts had such a power:

' This holding supports a conclusion we reach with

respect to the certified question: a CCA may not

disapprove a finding based solely on equitable

grounds.

5 It is instructive that in two of this Court’s

relatively recent cases addressing the valid scope of

CCA action under Article 66(c), UCMJ-— Tardif 57

M.J. at 230 (Sullivan, S.J., dissenting), and Quiroz,

55 M.J. at 345 (Sullivan, J., dissenting)— Waymire

was cited in dissent for the very proposition relied

upon by the Government and the dissent in this

case. See Nerad, 69 M.J. at 153-54 (Stucky, J.,

dissenting). Perhaps recognizing this, the

Government did not even raise Waymuire until its

reply brief to this Court.

Apart from the special rules of law applicable

in this area, there is the general principle

that an appellate tribunal can dismiss even a

valid finding as part of its action in

correcting errors at the trial and to insure

justice to the accused. This general power is

possessed by the boards of review.

9 C.M.A. at 408, 26 C.M.R. at 188 (citations

omitted);6 see a/so Quiroz, 55 M.J. at 338 (noting

that we have described Congress’s grant of authority

to the CCAs under Article 66(c), UCMJ, as an

“awesome, plenary, de novo power,” but denying

that this power is equitable in nature (quoting

United States v. Cole, 31 M.J. 270, 272 (C.M.A.

1990))); United States v. Claxton, 32 M.J. 159, 162

(C.M.A. 1991) (holding that a CCA may disregard

doctrines like waiver “in the interest of justice” to

reach legal errors that would otherwise’ be

uncognizable).

6 Drexler involved the disapproval of charges that

were multiplicious. /d. at 407, 26 C.M.R. at 187.

Multiplicious charges may be correct in law and fact

(under the applicable standards of review for legal

and factual sufficiency) but may nonetheless be

disapproved by the CCA (using a legal standard).

See Quiroz, 55 M.J. at 338-39. Drex/er is thus

consistent with our view that a CCA may only set

aside a legally and factually sufficient finding on the

basis of a legal—as opposed to equitable—ground.

lda

Today’s decision does not overrule Waymure:

Waymires holding on the certified issue in that

case—that a CCA may not decide a case on equitable

grounds and avoid its duty to determine whether a

finding is correct in law and fact, 9 C.M.A. at 254-55,

26 C.M.R. at 34-35—remains undisturbed. Waymuire

does not answer the certified issue in this case. See

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 379 (1994) (“It is to the holdings of our cases,

rather than their dicta, that we must attend....”).

And dictum otherwise contained in the case is both

contrary to the statutory text and has been eroded

by subsequent decisions.

While we acknowledge that a CCA’s power is not

as narrow as the Government suggests, nor as broad

as Appellee desires, this does not answer the

separate question of its scope with respect to a

finding that is correct in law and fact.

At first glance, the language “it finds ... should

be approved” in Article 66(c), UCMJ, might appear

to empower a CCA to modify both findings and

sentence for any reason or no reason at all, which is

Appellee’s position. Admittedly, this Court has used

broad language with respect to the CCAs’ discretion

that could be read to support this interpretation.

See, e.g. Tardif, 57 M.J. at 223 (recognizing the

broad power of the Courts of Criminal Appeals to

protect an accused); Claxton, 32 M.J. at 162

(indicating that Article 66(c), UCMJ, confers to

CCAs “carte blanche to do justice”); see also United

16a

States v. Lanford, 6 C.M.A. 371, 379, 20 C.M.R. 87,

95 (1955) (stating that the distinction in labeling

CCA action as clemency rather than judicial action

“matters little, so long as it is clearly understood ...

lthat the Boards of Review maintain] the power to

treat an accused with less rigor than their authority

permits”) (citation and quotation marks omitted).

For “liln enacting the UCMJ in 1950, Congress saw

fit to give the Boards of Review ... very broad powers

with respect to the approved findings and sentences

of courts-martial.” Beatty, 64 M.J. at 458. We have

repeatedly—“liJn words that have often been cited”—

characterized a CCA’s Article 66(c), UCM4J,

authority as an “awesome, plenary de novo power of

review [that] grants unto the Court ... authority to,

indeed, ‘substitute its judgment’ for that of the

military judge .... land] for that of the court

members.” Beatty, 64 M.J. at 458 (quoting Cole, 31

M.J. at 272) (alterations in original).

But the language in these cases does not exist in

a vacuum. Notably, Congress used_ different

language in granting review authority to a

convening authority under Article 60, UCMJ, and

CCAs under Article 66, UCMJ. This different

’ And, of course, the requirement that the CCA

review the record to ensure that the findings are

factually sufficient, that it is convinced beyond a

reasonable doubt that the facts support a finding of

guilt, permits it to do just that. See United States v.

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

l7a

language—along with the factual settings of cases

acknowledging a CCA’s discretion to modify a

sentence or finding under Article 66(c), UCMJ, and

well-established boundaries on a court’s discretion

related to constitutional statutes—compels_ the

conclusion that there are some limitations on a

CCA’s power to disapprove a “correct” finding.

The cases interpreting Article 66(c), UCMJ, have

reflected this Court’s attention to the specialized

nature of the military justice system, particularly

with respect to the unique’ functions and

responsibilities of convening authorities and CCAs.

Congress’s statutory grant of authority to the CCAs

with respect to findings and sentence is more limited

than the authority granted a convening authority.

Congress provided the convening authority with

clear unfettered discretion—as “a matter of

command prerogative’—to modify findings and

sentence under Article 60(c), UCM:

(1) The authority under this section to

modify the findings and sentence of a court-

martial is a matter of command prerogative

involving the sole discretion of the convening

authority....

(2) ... The convening authority ... in his sole

discretion, may approve, disapprove,

commute, or suspend the sentence in whole

or 1n part.

(3) Action on the findings of a court-martial

by the convening authority ... is not required.

L&a

However, such person, in his sole discretion,

may

(A) dismiss any charge or specification by

setting aside a finding of guilty thereto; or

(B) change a finding of guilty to a charge or

specification to a finding of guilty to an

offense that is a lesser included offense of the

offense stated in the charge or specification.

Accord United States v. Finster, 51 M.J. 185, 186

(C.A.A.F. 1999) (noting that convening authorities

enjoy “unfettered discretion to modify the findings

and sentence for any reason—without having to

state a reason—so long as there is no increase in

severity”); R.C.M. 1107(c) Discussion (noting a

convening authority may set aside a finding “for any

reason or no reason”).

While the CCA clearly has the authority to

disapprove part or all of the sentence and findings,

nothing suggests that Congress intended to provide

the CCAs with unfettered discretion to do so for any

reason, for no reason, or on equitable grounds, which

is a function of command prerogative. See United

States v. Prince, 16 C.M.A. 314, 315-16, 36 C.M.R.

470, 471-72 (1966) (citing legislative history

distinguishing the convening authority’s power of

unfettered discretion over sentences from the more

limited power of review of both intermediate

appellate courts and this Court). The language of

Article 60(c), UCMJ, gives a convening authority

unfettered discretion; the language of Article 66(c),

19a

UCMJ, is not as bold. We assume Congress used

different language for a reason. /.g., 2A Norman J.

Singer & J.D. Shambie Singer, Sutherland Statutes

and Statutory Construction § 46:6, at 252 (7th

ed.2007). The CCAs’ power, therefore, must be more

limited.

Nonetheless, the words “should be approved” do

have some meaning, and we reject the proposition

that the “should be approved” clause of Article 66(c),

UCMJ, means on/y that the lower court can adjust

findings and sentences that are incorrect in law or

fact, at least as the standards for legal and factual]

sufficiency are ordinarily understood, see supra note

l. But see Nerad, 69 M.J. at 150-51 (Stucky, J.,

dissenting). That approach both fails to afford

independent meaning to “should be approved” and

renders it surplusage, as a CCA clearly may not

approve a legally or factually insufficient finding or

an illegal sentence. See New Process Steel, LP. v

8 Moreover, if “should be approved” modifies both

findings and sentences, that approach cannot easily

be reconciled with precedent acknowledging that a

CCA may disapprove “correct” findings and

sentences because they are nonetheless

“inappropriate,” or “unreasonable” as a matter of

law. See, eg., Quiroz, 55 MJ. at 339; Drexler, 9

C.M.A. at 408, 26 C.M.R. at 188. Jackson itself

noted that Congress contemplated CCAs having the

power to “set aside, on the basis of the record, any

“

part of a sentence, either because it 1s illegal or

because it is inappropriate.” 353 U.S. at 577 n. 8

ZO0u

NLRB, No. 08-1457, 2010 U.S. LEXIS 4973, at *11.

2010 WL 2400089, at *4 (U.S. June 17, 2010) (citing

Duncan v. Walker, 533 U.S. 167, 174) (2001)

(declining to adopt a “construction of the statute,

[that] would render {a term] insignificant”)).9

Qur sentencing decisions on_ this _ point

underscore that the statutory phrase “should be

approved” does not involve a grant of unfettered

discretion but instead sets forth a legal standard

subject to appellate review. See, e.g., United States

Vv. Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002)

(remanding a lower court decision for de novo review

in view of the possibility that the lower court, in

holding a sentence to be inappropriate, exceeded its

powers); see also Lacy, 50 M.J. at 288 Cholding

Article 66(c), UCMJ, bars the lower courts acting on

issues of sentence appropriateness from committing

“obvious miscarriages of justice or abuses of

discretion” and referencing factors that a CCA might

(quoting S. Rep. No. 81-486, at 28 (1949), reprinted

in 1950 U.S.C.C.A.N. 2222, 2254) (emphasis added).

% Contrary to the dissent’s assertion that our

interpretation of Article 66(c), UCMJ, “discover|s] a

hitherto unknown power,” Nerad, 69 M.J. at 149

(Stucky, J., dissenting), the present opinion reflects

the established analysis of the statute offered by the

Court in our prior decisions. See supra 141-43;

Tardif, 57 MJ. at 224; Quiroz, 55 M.J. at 338;

United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F.

1998); Claxton, 32 M.J. at 162.

look to in determining whether entenc

reassessment Wis warranted): Christopher, I

C.M.A. at 236, 32 C.M.R. at 246 (noting Article 66(c)

UCM, does not authorize the lower courts, while

reviewing a sentence, to take an action that |

“arbitrary, capricious’) Article 66%), UCMJ

empowers the CCAs to “do justice,” with reference to

some legal standard, but does not grant the CCA

the ability to “grant mercy.” United States v. Boone,

49 M.J. 187, 192 (C.A.A.F. 1998) (eitation and

quotation marks omitted). Granting mercy for any

reason or no reason is within the purview of the

convening authority. /d. Contra Lanford, 6 C.M.A

at 378-79, 20 C.M.R. at 94-95 (suggesting that

Intermediate appellate courts may grant clemency)

Moreover, although we have held that Article

66(c), UCMd, permits a CCA to examine the record

In a particular case and dismiss a finding because an

accused's criminality was unreasonably exayyerated

by the same acts beings charged multiple ways,

Quiroz, 55 M.J. at 338-39, we have never suggested

that Article 660), UCM... permits a CCA to

disapprove a legally and factually sufficient finding

because it believes that the conduct—while falling

squarely within the ambit of behavior prohibited by

a constitutional criminal statute—should not be

criminalized.'!®? Nor could we Oakland Cannabis

0 This is distinguished, of course, from the well

established authority of the President within the

military justice system to clarify or give meaning: to

the UCMJ through promulgation of the Discussion

and Analysis sections of the Manua/ for Courts

Buyers’ Coop., S42 US. at 490-91, 498-99 Crejoceting

the suggestion that even a court actingg in equity

could effectively decrimiunalize actions clearly barred

under the Controlled Substances Aet by crafting a

medical-necessity exception to the Act's prohibitions

against marijuana

As demonstrated above, the broad langvuaye with

which we have desertbed the CCAs powers has been

cabined in practice. While we have held that the

CCAs can assess the record and determine whether

the findings and sentence “should be approved? in

the event of error even if the error did not rise to the

level of requiring disapproval of the finding oF

sentence as a matter of law, those decisions arose in

the context of trial and post-trial errors in which

Martial, United States See United States \

Contreras, 69 MJ. 120, 121 nd CAA. 2010)

(The President's analysis of the punitive articles a

persuasive, but not binding, authority Moreover,

where the President's narrowing construction 4

favorable to an accused and is not meconsimtent with

the languaye of a statute, we will not disturb the

President's narrowing construction, which os an

appropriate Executive branch limitation on the

conduct subject to prosecution. Cemtinpe Gaited States

v. Miller, G7 MJ. 87, 89 (CLALALF. 2008) United

States v. Guess, 4% MJ. 69, 71 (CAA. 199%)))

(alterations and quotation marks omitted), see alse

United States v. Jones, 68 M.Jb. 465, 471-72 COA ALF

2010)

208

doctrines applicable to issues of law—such as

walver—would have precluded CCA action in the

absence of the “should be approved” language of

Article 66(c), UCMJ.!! See Qurroz, 55 M.J. at 338

(stating that the lower court, having identified an

unreasonable multiplication of charges—an abuse of

prosecutorial discretion—possessed the authority

under Article 66(c), UCMJ, “to determine the

circumstances, if any, under which it would apply

walver or forfeiture”); Whee/us, 49 M.J. at 288

(recognizing that, while clemency is the province of

the convening authority, the intermediate courts

have “broad power to moot claims of prejudice”

under Article 66(c), UCMJ, related to error in the

post-trial process); Claxton, 32 MJ. at 164

(approving a dectsion by the intermediate court to

order a sentence rehearing in light of an evidentiary

error during sentencing under circumstances in

which waiver would have ordinarily precluded

ll [Tt is not accurate to equate—as the dissent

implicitly does, Nerad, 69 M.J. at 150-51, 154

(Stucky, J., dissenting)—any and all error in the

proceedings with the separate and distinct tests for

whether the finding and sentence are “correct in law

and fact.” Article 66(c), UCMd; see supra note 1. A

disparate sentence or a multiplicious finding can be

correct in law and_=e fact but nonetheless

“inappropriate” or “unreasonable.” See, e.g., Quiroz,

55 M.J. at 339: United States v. Olinger, 12 MJ.

458, 460 (C.M.A. 1982); Drex/er, 9 C.M.A. at 408-09,

26 C.M.R. at 188-89.

24a

relief). We have expressly declined to agree that a

CCA may disapprove a finding based on pure equity.

Quiroz, 55 M.J. at 339.

To be clear, when a CCA acts to disapprove

findings that are correct in law and fact, we accept

the CCA's action unless in disapproving the findings

the CCA clearly acted without regard to a legal

standard or otherwise abused its discretion. A CCA

abuses its discretion when it disapproves a finding

based on purely equitable factors or because it

simply disagrees that certain conduct—clearly

proscribed by an unambiguous statute—should be

criminal. Even though a CCA is not required to

identify the basis for its action, failure to do so

makes it difficult to determine whether a CCA's

exercise of its Article 66(c), UCMJ, power was made

based on a correct view of the law. The better

practice, if a CCA sets aside a finding or sentence

that is correct in law and fact, is for it to explain why

the finding is unreasonable, based on a_ legal

standard.

LT |

Although this Court is required by statute to

review the present appeal under Article 67(a)(2),

UCMJ, 10 U.S.C. § 867(a)(2) (2006) (review of cases

certified by the Judge Advocate General), Appellee

argues that even if we identify an erroneous

application of the law by the lower court, no

remedial action—such as a remand to apply the

correct principles of law—can be ordered.

Qur precedent is to the contrary In U/nited

States v. Leak, 61 MJ. 234 (C.A.A.F. 2005), we

observed that this Court. since the early days of the

UCMJ, has reviewed lower court decisions under

Article 67(a)(2), UCM, tor comphance with the law,

and we have not confined corrective action to those

cases found by the lower court to be “incorrect in

law. See id. at 239-42; see also QJUITOZ, 55 M.J. at

338-39 (rejecting a factor the CCA used in

conducting the unreasonable multiplication — of

charges analysis and remanding tor the CCA to

apply the correct factor); United States v. Thompson,

2 C.M.A. 460, 464, 9 C.M.R. 90, 94 (1953) (reversing

a CCA’s factual sufficiency determination because it

misapprehended the legal elements of the offens«

and remanding for the CCA to conduct a new factual

sufficiency review using the appropriate elements)

Rather, the power to review a case under Articl

67(a)(2), UCM, includes the power to. order

remedial proceedings, such as a remand, to ensure

that the lower court reviews the findings and

sentence approved by the convening authority in

manner consistent with a “correct view of the law

See Leak, 61 M.J. at 242 (eitation and quotation

marks omitted)

Whether the CCA's review in this case was

consistent with a “correct view of the law’ is an open

question. The CCA appeared to believe it had

unfettered discretion to disapprove a finding. The

court identified no error—even error that would not

preclude a determination that the finding was

correct 1n law and fact-—or other legal rationale with

respect to the charge, the specification, the finding,

26a

the trial, or the post-trial process that warranted

exercise of its unique power under Article 66(c),

UCMJ.!2. Nor did the CCA identify tangible factors,

either by reference to other charges in the case or by

reference to other cases, that led it to conclude that

the finding “unreasonably exaggerateld] the

eriminality of” the conduct, Nerad, 67 M.J. at 751-52,

or any factor that caused the charge, albeit lawful, to

constitute an abuse of prosecutorial discretion. Cf

United States v. Quiroz, 57 M.J. 583, 585-86 (N.M.

Ct. Crim. App. 2002) (finding an unreasonable

multiplication of charges based on clearly explained

factors).

While none of these factors are either required Or

dispositive, the CCA’s comment that it disapproved

the finding because it was “not the sort of conduct

which warrants criminal prosecution,” Nerad, 67

M.J. at 751, gives us pause, particularly in light of

its failure to discuss any of the non-exclusive bases

that may have made its action appropriate.

'’ Under the present circumstances, where the CCA

did not purport to disapprove the finding on the

basis of a legal error, this case simply does not

implicate or address Article 59(a), UCMJ, 10 U.S.C

§ 859(a) (2006) CA finding or sentence of court-

martial may not be held inccrrect on the ground of

an error of law unless the error materially prejudices

the substantial rights of the accused.”). Contra

Nerad, 69 M.J. at 149, 154-55 (Stucky, J.,

dissenting).

. .

ala

It is possible that the CCA beheved it could set

aside a finding in a guilty plea case where the

accused was fully apprised of the collateral

consequences of his conviction on the ground that it

beheved that: (a) Appellee should not have been

prosecuted; or (b) the convening authority should

have granted the clemency Appellee requested. But

both of those decisions are matters of command

prerogative and, as such, are for the convening

authority, not the CCA. Article 60(c), UCMJd: United

States v. Travis, 66 M.J. 301, 303 (C.A.A.F. 2008)

(Clemency is a highly discretionary command

function of a convening authority.”) (citation and

quotation marks omitted). Moreover, given the

reasoning underlying the CCA’s decision here, the

CCA may have disapproved the finding of guilty to

the child pornography offense (which criminalizes

the relevant conduct with persons under the age of

eighteen without exception, see 18 U.S.C. § 225601)

based on its own judgment regarding the wisdom of

applving the statute to cases where “the appellant

was 1n the unique position of having a relationship

with someone he could legally see naked and, but for

his existing marriage, legally have sex with, but

could not legally possess nude pictures of her that

she took and sent to him.” Nerad, 67 M.J. at 751.

This it may not do. See Badaracco v. Comm'r, 464

U.S. 386, 397-98 (1984) (“Courts are not authorized

to rewrite a statute because they might deem its

effects susceptible of improvement.”).

If the CCA in fact based its decision on the above

rationale, labeling the finding “unreasonable” does

not transform a quintessentially equitable

determination into a legal one. In light of the

foregoing, the case is remanded for a new Article

66(c), UCM, review consistent with this decision.

it.

The decision of the United States Air Force

Court of Criminal Appeals 1s set aside. The record of

trial is returned to the Judge Advocate General of

the Air Force for remand to the United States Air

Force Court of Criminal Appeals for a new review

under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006)

BAKER, Judge (concurring in the resuit)

In my view, the majority seeks to decide too

much and rebut too much at this stage in the

proceedings. Asa result, | write separately to concur

28a

Courts of Criminal Appeals (CCAs) are courts of

law. They can decide cases based on principles of

law or issues of fact. Viewing the words of Article

66, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 866 (2006), in the context of the UCM as a

whole, and the role of CCAs within that UCMJ, it is

clear that CCAs are not equitable courts, and they

are not policy-making bodies. They are empowered

to decide cases based on principles of law applied in

the context of Article 66, UCMJ.

The problem here is that we do not know on

what legal basis, if any, the lower court dismissed

the charge in this case; the lower court’s opinion does

not elaborate. It appears that the lower court has

acted with de facto clemency; however, having

decided to make Appellant’s appeal a test case, the

CCA should have an opportunity to explain its

reasoning. ‘Therefore, I agree with the remand.

With the benefit of additional input from the lower

court regarding what legal principles it applied, if

any, in reaching its conclusions, we will better

understand where the case-specific and statutory

fault lines lhe between the various opinions. At that

point, this Court will be able to more squarely

address the Article 66, UCMJ, issues at hand.

STUCKY, Judge (dissenting):

Kquity is a Roguish thing: for Law we have

a measure, know what to trust to; Equity is

according to the Conscience of him that is

Chancellor, and as that is larger or

narrower, so is Equity. “Tis all one as if they

2IQag

should make the Standard for the measure

we call a Foot, a Chancellor’s Foot; what an

uncertain Measure would be this. One

Chancellor has a long Foot, another a short

Foot, a Third an indifferent Foot: “lis the

same thing in the Chancellor’s Conscience

John Selden, 7able-Talk- Being the Discourses of

John Selden, Hhsq. 43-44 Usrael Gollanez ed., The

Temple Classics, 3d ed.1906) (1689).

Sixty years after the enactment of the Uniform

Code of Military Justice (UCMJ), the United States

Air Force Court of Criminal Appeals and _ the

majority discover a hitherto unknown power of the

Courts of Criminal Appeals (CCAs) to disapprove

findings that are correct in law and fact under the

“should be approved” clause of Article 66(c), UCM,

10 U.S.C. § 866(c) (2006). To infuse the “should be

approved” clause with this desired meaning, the

majority embarks on a quixotic quest. It reaches its

destination by misreading Arvicle 66(c), concocting a

novel understanding of the term “correct in law,” and

despite protestations to the contrary, creating a

standard so vague that 1t amounts to no standard at

all, simply equity—the measure of the Chancellor’s

foot. Ultimately, the majority’s approach eviscerates

the requirement that “lal finding or sentence of a

court-martial may not be held incorrect on the

ground of an error of law unless the error materially

prejudices the substantial rights of the accused.”

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006).

30a

While I agree with the majority that we have

jurisdiction over this case, I continue to believe that

a CCA is not authorized to disapprove a finding or

sentence that is correct in law and fact. The

majority's reading of Article 66 is inconsistent with

the language of the statute taken as a whole, the

Supreme Court’s opinion in Jackson v. Taylor, 353

U.S. 569 (1957), interpreting the statute, and this

Court’s precedents of more than fifty years.

The CCA’s action in setting aside Appellee’s

conviction for possession of child pornography is

beyond its statutory authority and therefore without

effect. As the CCA found the conviction correct in

law and fact, this Court should order the conviction

reinstated.

In exchange for the convening authority’s

agreement to withdraw two specifications and cap

the period of confinement that could be approved,

Appellee pled guilty to a number of offenses,

including possession of child pornography under

clauses 1 and 2 of Article 134, UCMJ, 10 U.S.C. §

934 (2006). The CCA pointed out that the charges

grew out of a love affair that Appellee was having

with a seventeen-year-old girl, who sent him nude

photos and a video of herself over the Internet.

United States v. Nerad, 67 M.J. 748, 751 (A.F. Ct.

Crim. App. 2009). Although not raised by Appellee,

the CCA asked whether it had authority to set aside

a conviction that was correct in law and fact “in the

interest of justice.” Jd. at 749. As Appellee could

sla

lawfully see his paramour naked and, but for his

existing marriage, have sex with her, the CCA

concluded that:

the lappellee’s| possession of th* photos

under these circumstances 1s not the sort of

conduct which warrants criminal prosecution

and that this conviction unreasonably

exaggerates the criminality of his conduct

The question 1s whether we can set aside the

conviction on that basis alone, even though

we find no legal error and the appellant

never raised an issue at trial, pleading gui/ts

to that offense The government

unconvincingly argues that neither the plain

language of the statute, its legislative

history, nor case precedent indicates the

Court can set aside a finding of guilty that 1

found correct in law ard fact. We d gree O}

all point

ld (empha 1S added)

Appellee could have challenged the specification at

trial and asserted that, under the circumstances, he

was not guilty. Instead, he chose to plead guilty. In

that situation, the appropriate inquiry for the CCA

would have been whether there was a substantial

basis in law or fact for rejecting the plea. United

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.

2008). Apparently there was none. Instead of

affirming, however, the CCA chose to set sail on

these uncharted waters. ‘To permit an accused to

This Court holds that the CCAs have broad

authority to disapprove a finding that is correct in

law and fact but that authority is not unfettered

United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F

2010) This Court will “accept the CCA’s action

unless in disapproving the findings the CCA clearly,

acted without regard to a legal standard or

otherwise abused its discretion.” /d. at 14% lf

remands to the court below apparently to identify an

error even error that would not pree lude a

determination that the finding was correct in

law and ftact—or other legal rationale wit!

respect to the charge, the specification, Lrve

finding, the trial, or the post-trial proce

that warranted exercise of its unique powe)

under Article 664c), UCMJ. Nor did the CCA

identify tangible factors, either by reference

to other charges in the case or by reference to

other cases, that led it to conclude that the

finding “unreasonably exaggerateld] — th

criminality of” the conduct, Werad, 67 M.J. at

751-52, or any factor that caused the charge

albeit lawful, to constitute an abuse. of

prosecutorial discretion

ld. at 147-48 (brackets in original) (lootnot

omitted).

receive the benefit of a pretrial agreement and yet

yrevall on appeal when the conviction 1s correct in

| pI

law and fact is astonishing.

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36a

discretion to disapprove a finding that is correct in

law and tact. See id. at 142-44.

Just as 1 disagree with the majority's analysis of

the CCAs’ powers to reduce sentences, | oppose its

conclusions as to the CCAs’ powers to disapprove

findings. 1 conclude that the “should be approved”

language is not an independent grant of power, but

merely a mechanism by which Congress granted

authority to the CCAs to correct errors of fact or law,

based on the entire record, without having to

remand for a rehearing.

VI.

The CCA’s power to review a_ sentence for

appropriateness is a function of its duty under

Article 66(c) to affirm only so much of the sentence

as it finds correct in fact. See Jackson v. Taylor, 353

U.S. 569, 576-77 (1957). It does not derive from the

“should be approved” language of the statute. ut

see United States v. Lacy, 50 M.J. 286, 287-88

(C._A.A.F.1999).

In Jackson, the Army Board of Review set aside

the petitioner’s conviction for murder, affirmed his

conviction for attempted rape. and reduced the

sentence from mandatory confinement for life to the

maximum for attempted rape—confinement for

twenty years. 353 U.S. at 570. In a habeas petition,

id. at 572, Jackson asserted that Article 66(c) was

ambiguous and that he should have received the

34a

benefit of that ambiguity: The Board of Review

should have ordered a sentence rehearing rather

than merely reassessing the sentence. /d. at 576.

The Supreme Court found “no authority in the

Uniform Code for such a procedure.”? /d. at 579, 77

S.Ct. 1027. It concluded that

the words [of the statute] are clear. The

board may “affirm ... such part or amount of

the sentence, as It finds correct...... That is

precisely what the review board did here. Jt

atfirmed such part, 20 years, of the sentence,

life imprisonment, as it found correct in fact

and law for the oftense of attempted rape.

Were the words themselves unclear, the

teachings from the legislative history of the

section would compel the same result.

2 As the Supreme Court noted in Jackson, Congress

never intended a case to be remanded back to a

court-martial for a sentence rehearing. See Article

66(d), UCMJ (permitting remand when the CCA

“sets aside the findings and sentence”) (emphasis

added): but see United States v. Miller, 10 C.M.A.

296, 299, 27 C.M.R. 370, 373 (1959) (concluding that

it is “entirely unreasonable” to construe the

statutory language in Article 66(d) as authorizing a

rehearing only if the findings and sentence were set

aside; that it would read the term “and” to mean

“or’; and that Jackson did not intend to limit the

power of the appellate courts to order rehearing on

sentence alone): accord Unitea States v. Sills, 56

M.J. 239, 240 (C.A.A.F. 2002).

[d. at 576 (emphases added).

Because the Supreme Court found the language

of Article 66(c) to be clear, there was and is no need

to resort to the legislative history to interpret the

statute. Nevertheless, while the Supreme Court

decided Jackson based on the statute’s clear

language, 1t dia not shun the legislative history but

rather embraced it. It determined that the clear

language of the statute was consistent with the

legislative history. /d. at 576. It quoted the following

portion of the legislative history as “augmentling]”

its conclusions:

“The Board ot Review shall affirm a finding

of guilty of an offense or a lesser included

offense ... if it determines that the finding

conforms to the weight of the evidence and

that there has been no error of law which

materially prejudices the substantial rights

of the accused.... The Board may set aside,

on the basis of the record, any part of a

sentence, either because it is W/ega/ or

because it 1s mnappropriate. It is

contemplated that this power will be

exercised to establish uniformity of sentences

throughout the armed forces.”

Id. at 577 n.8 (emphases added) (quoting S. Rep. No.

81-486, at 28 (1949)): see also H.R. Rep. No. 81-491,

at 31-32 (1949) (containing same language). Thus,

39a

Jackson and the legislative history are congruent: A

sentence that is illegal is incorrect in law and one

that is inappropriate is incorrect in fact. If the

sentence is illegal or inappropriate, the CCA should

instead affirm the sentence that should be

approved—a sentence that 1s correct in law and fact.

After the Board of Review set aside Jackson's

murder conviction, his life sentence was incorrect in

law—it exceeded the maximum _— punishment

permitted for attempted rape, which was twenty

years. After considering the entire record, the Board

of Review determined, as a matter of fact, that

confinement for twenty years was the legal and

appropriate sentence. To read Article 66(c) in the

manner the majority does—that the CCA’s authority

to determine sentence appropriateness stems from

its duty to affirm only that part of the sentence that

should be approved—renders superfluous’ the

requirement to find the sentence correct in fact,

something we are discouraged frem doing. See

Solrmino, 501 U.S. at 112.

VII.

Contrary to the position taken by the

Government, I agree with the majority's

grammatical assessment of Article 66(c): The words

“should be approved” apply to a CCA’s review otf both

findings and sentence. Nerac, 69 M.J. at 142. But I

understand the words to apply in a _ different

manner, one that is consistent with the rest of the

statute, including Article 66(d), UCMJ.

40a

Article 66(d) provides that the CCA may order a

rehearing if it sets aside both the findings and

sentence. ‘The “should be approved” language in

Article 66(c) ties the power of the CCA to determine

whether the findings and sentence are correct in law

and fact with Article 66(d)’s limitations on ordering a

rehearing. If only the sentence is incorrect in law or

fact, the CCA may not order a rehearing. See

Jackson, 353 U.S. at 579; Article 66(d), UCMJ. The

CCA itself must determine what sentence “should be

approved”—one that is correct in law and fact. If the

CCA sets aside a finding and sentence it may order a

rehearing. Article 66(d), UCMJ. The CCA does not

order a rehearing if it sets aside a finding of guilty

but the evidence nevertheless established the

accused’s guilt of a lesser included offense. Instead,

it affirms the finding and sentence that “should be

approved’-—one that is correct in law and fact

In the case now before us, the CCA held that,

pursuant to its authority under Article 66(c) to

affirm only those findings that should be approved, it

had authority to overturn Appellee’s guilty plea to

the possession of child pornography “even in the

absence of legal or factual error.” Nerad, 67 M.J. at

751 (citing United States v. Tardif 57 M.J. 219, 224

(C.A.A.F. 2002)). As the findings were concededly

correct in law and fact, and there appears tv be no

basis in law or fact for setting aside his guilty plea

(indeed, that issue was not even raised), the CCA

was without authority to determine that the

conviction for possession of child pornography should

not be affirmed. This conclusion is consistent with

Jackson and our longstanding precedent, United

4la

States v. Waymure, 9 C.M.A. 252, 26 C.M.R. 32

(1958).

VIII.

In Waviraire, the Board of Review could not

decide whether a court-martial had jurisdiction over

the accused for or.2 of his offenses. /d. at 254, 26

C.M.R. at 34. In heu of reaching a decision on the

jurisdiction question and without deciding whether

the conviction was incorrect in law or fact, the Board

of Review dismissed the offense in an act this Court

characterized as akin to a compromise or arbitration.

Td. at 253-54, 26 C.M.R. at 33-34. We held that the

Board had exceeded the scope of its statutory

authority and reversed. /d. at 255, 26 C.M.R. at 35.

The majority asserts that, in Waymuire, we did

not purport to interpret “what the words ‘should be

approved’ entailed in the conte’.t of a board’s action

on legally and factually sufficient findings,” and that

“Waymire thus serves as_ precedent for the

unremarkable proposition that CCAs may not

disapprove findings on equitable grounds’ or

disregard their statutory duty to determine legal and

factual sufficiency.” Nerad, 69 M.J. at 143. I

disagree.

In Waymire, we did interpret the meaning and

scope of the authority of the Boards of Review under

Article 66(c):

The extent of a board of review’s powers

over findings have frequently been the

42a

subject of review by this Court. In United

States v. Fleming, 3 C.M.A. 461, 13 C.M.R.

17, we said that a board of review “is under a

duty to affirm so much of the findings of

guilty as is not affected by error committed

at the trial.” Unlike a convening authority,

who may disapprc ¢ findings of guilt for any

reason, or for no reason at all, a board of

review may only disapprove such findings as

it finds incorrect in law and fact. United

States v. Massey, 5 C.M.A. 514, 18 C.M.R.

138. It was never intended that a board of

review be given the power to disapprove

findings in its “discretion.” Cf Article 64, of

the Uniform Code, supra, 10 U.S.C. § 864.

Not only does Article 66, supra, require that

a board affirm findings of guilt which it

determines to be correct in law and fact, but

also that such determination be made ‘on

the basis of the entire record.” In United

States v. Whitman, 3 C.M.A. 179, 11 C.M.R.

179, we said that it was error for a board of

review to rely upon matter lying outside the

record of trial in setting aside an otherwise

valid conviction. It was held in that case

that such action went well beyond the

statutory limits established by the Code. Cf

United States v. Burns, 2 C.M.A. 400, 9

C.M.R. 30. In the instant case, there is no

question but that the board of review, in

setting aside the forgery conviction solely on

the basis of “substantial justice,” exceeded

the scope of its authorized statutory

43a

functions. United States v. Gordon, 2 C.M.A.

632, 10 C.M.R. 130.

9 C.M.A. at 255, 26 C.M.R. at 35 (emphasis added).

This Court did not just opine that the CCAs may

only disapprove findings by reference to legal

standards. Nerad, 69 M.J. at 143. It provided the

standard: The CCA must affirm the conviction

unless prejudicial error was committed at trial.

Waynure, 9 C.M.A. at 255, 26 C.M.R. at 35; see also

Jackson, 353 U.S. at 577 n.8.

The majority further attempts to trivialize

Waymure by asserting that one month after deciding

that case we suggested that the CCAs had the power

to disapprove a finding that is correct in law and

fact. Nerad, 69 M.J. at 143-44 (citing United States

v. Drexler, 9 C.M.A. 405, 408, 26 C.M.R. 185, 188

(1958)). But that is not what Drex/er says or means.

As the majority quotes, “an appellate tribunal can

dismiss even a valid finding as part of its action in

correcting errors at the trial.” Jd. at 143 (quoting

Drexler, 9 C.M.A. at 408, 26 C.M.R. at 188)

(emphasis added). Although Drexler’s convictions

were valid, in the sense that each was factually and

legally sufficient on its own, the Board of Review did

find an error of law—one of the charges was

multiplicious with another. Drexler, 9 C.M.A. at

407, 26 C.M.R. at 187. Although at the time,

reconsideration of the sentence was thought to “cure

any error resulting from any possible

multiplication,” we determined that dismissing the

duphcating charge was within the sound discretion

44a

of the Board of Review. /d. at 408, 26 C.M.R. at 188

(quoting United States v. McCormick, 3 C.M.A. 361

363, 12 C.M.R. 117, 119 (1953)). Rather than

contradict Waymire as the majority contends,

Drexler actually supports it. The Board of Review in

Drexler corrected an error of law; it did not act as a

matter of discretion.

Nor is Waymire a mere sport, a unique holdit. 2

unbuttressed by other authority. In fact, there was

substantial authority prior to Waymire for the same

view of the power of the Boards of Review. See

United States v. Fleming, 3 C.M.A. 461, 465, 13

C.M.R. 17, 21 (1953) (positive duty of Board of

Review to affirm findings not affected by error at

trial); United States v. Whitman, 3 C.M.A. 179, 180,

11 C.M.R. 179, 180 (1953) (Board of Review exceeds

Article 66 power when it set aside findings because it

would “create an injustice” in light of convening

authority action in a related case).

IX.

“(Tlhe doctrine of stare decisis is of fundamental

importance to the rule of law.” Welch v. Texas Dep't

of Highways and Pub. Transp., 483 U.S. 468, 494,

3 Neither United States v. Claxton, 32 M.J. 159

(C.M.A. 1991), nor United States v. Tardif. 57 M.dJ.

219 (C.A.A.F. 2002), cited by the CCA as support for

its action, can carry the weight placed on them.

Claxton was a waiver case involving sentencing, in

which the statement about findings was an obiter

dictum; 7ardifdealt entirely with sentencing.

45a

(1987). “Adherence to precedent promotes stability,

predictability, and respect for judicial authority.”

Hilton v. South Carolina Pub. Rys. Comm'n, 502

U.S. 197, 202 (1991). Stare decisis applies with

“special force in the area of statutory interpretation”

because “the legislative power is implicated, and

Congress remains free to _ alter’ a_ court’s

interpretation. Patterson v. McLean Credit Union,

491 U.S. 164, 172-73 (1989), quoted in Hilton, 502

U.S. at 202.

Kor those reasons, we should “not depart from

the doctrine of stare decisis without some compelling

justification.” Az/ton, 502 U.S. at 202. he majority

has not provided such compelling justification to

jettison Waymure and the cases that preceded it.

The majority suggests that the CCA’s authority

to disapprove a finding that is correct in law and fact

is “cabined” but provides scant support for the

proposition. Nerad, 69 M.J. at 146-47. It hints that

the CCA’s decision in this case might have been

acceptable if it had identified some error—‘“even

error that would not preclude a determination that

the finding was correct in law and fact.” Nerad, 69

M.J. at 147. Such a conclusion guts Article 59(a),

UCMJ: “A finding or sentence of court-martial may

not be held incorrect on the ground of an error of law

unless the error materially prejudices’ the

substantial rights of the accused.”

46a

XI.

As the majority opinion announces new law, it is

appropriate to consider how this grant of authority

to the CCAs may operate.

‘he majority asserts that the CCAs_ have

“broad,” although not unfettered, authority — to

disapprove a finding that is correct in law. Nerad,

69 M.J. at 140. It insists that “the statutory phrase

‘should be approved’ does not involve a grant of

unfettered discretion but instead sets forth a legal

standard subject to appellate review.” /d. at 146

(citing United States v. Hutchison, 67 M.J. 231, 234

(C.A.A.F. 2002); Lacy, 50 M.J. at 288).

The majority then asserts that for findings the

CCAs’ authority is “cabined.” /d. at 146°47. If by

“cabined,” the majority is applying the “ordinary”

meaning of the word—confined within a narrow

space or limits, see Webster's Third New

International Dictionary, Unabridged 309 (2002)—it

seems contrary to the characterization of a CCA’s

sentencing power employed in the cases it cites. In

Hutchison, 57 M.J. at 234, and Lacy, 50 M.J. at 287

88, this Court described a CCA’s’ sentencing

authority as a “highly discretionary power” that this

court reviews for an abuse of discretion. See a/so

United States v. Claxton, 32 M.J. 159, 162

(C.M.A.1991) (“A clearer carte blanche to do justice

would be difficult to express.”).

Whether the majority’s legal standard is

“cabined” or highly discretionary, in the end it

amounts to no standard at all. ‘The majority state

that it will accept a CCA's decision to disapprove

findings that are correct in law and fact “unless in

disapproving the findings the CCA clearly acted

without regard to a legal standard or otherwisi

abused its discretion.” Nerad, 69 M.J. at 147. It

uuggests that it might have upheld the CCA’

judgment if it had (1) identified some rationale or

error, even a harmless one, or (2) identifhed som

“tangible factors” leading tt to conclude that the

finding of guilty “unreasonably exapyerated§ the

criminality off Appellee’s conduct or “caused the

charge, albeit lawful,” to constitute “an abuse of

prosecutorial discretion.” /d. at 147-48 Ceitations and

brackets omitted)

In tact. what we have done here is to tacitly

grant the CCAs a power that Conyress withheld

even from those creatures of pure equity, the board

for correction of military records: the power lo revise

the findings of courts-martial simply because a

particular CCA panel does not like a_ particular

result, or regards it as “umust.” See 10 U.S.C. &

15520). I can discern no principled standard by

which the CCAs are to implement today’s decision or

we are to review these actions. ‘Tiie CCAs, limited

only by their own sense of judicial restraint—the

measure of their own feet—are now free to act a

councils of revision. Thus, despite protestations to

the contrary, the majority's decision grants equitable

power to the CCAs

The majority decision ! unsupported | by

Sa Ason it Tavilor and Our Case | iW | not compelled

APPENDIA B

50a

the challenged ruling or, in the alternative, to

summarily affirm, is hereby denied, that the motion

filed by Government Appellate Division, U.S. Army,

for leave to file brief on behalf of amicus curiae is

hereby granted. that the motion filed by National

Institute of Military Justice for leave to file and

extend deadline for filing amicus curiae brief is

hereby granted, that the motion filed by National

Institute of Military Justice to participate in oral

argument is hereby denied, and that Appellant's

motion for leave to file a response to National

Institute of Military Justice’s amicus curiae brief

and motion for leave to participate on oral argument

hereby granted.

Kor the Court.

S William A. DeCicco

Clerk of the Court

APPENDIX C

UNTTED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Senior Airman MICHAEL T. NERAD

United States Air Force

ACM 36994

29 May 2009

Sentence adjudged O7 February 2007 by GCM

convened at McGuire Air Force Base, New Jersey.

Military Judge: Gary M. Jackson (sitting uione).

Approv ed sentence Dishonorable discharge,

) Be

confinement for 12 months, forfeiture of all pay and

allowances, reduction to E-1, and a reprimand.

Appellate Counsel for the Appellant: Lieutenant

Colonel Mark R. Strickland, Major Shannon A.

Bennett, and Major Lance J. Wood.

Appellate Counsel for the United States: Colonel

Gerald R. Bruce. Lieutenant Colonel Matthew S.

Ward, Major Jeremy S. Weber. and Captain Coretta

E. Gray.

Before

FRANCIS, HEIMANN, and THOMPSON

Appellate Military Judges

OPINION OF THE COURT

FRANCIS, Senior Judge:

Consistent with his pleas, the appellant was

convicted by a military judge, sitting as a general

court-martial, of one specification each of failure to

obey a lawful order. wrongtul disposition of military

property, larceny of military property, sodomy,

possession of child pornography, and adultery. in

violation of Articles 92, 108, 121, 125, and 134,

UCMJ, 10 U.S.C. §§ 892, 908, 921, 925, 934. The

adjudged and approved sentence consists of a

dishonorable discharge. 12 months confinement.

forfeiture of all pay and allowances, reduction to E-1,

and a reprimand.

The appellant asserts ne was subjected to cruel

and unusual post-trial punishment. in violation of

the Kighth Amendment! and Article 55, UCMJ, 10

U.S.C. § 855.2. Although not raised by the appellant

1U.S. CONST. amend. VIII.

- The appellant raised this issue pursuant to U/77ted

States v. Grostefon, 12 M.J. 431 (C.M.A.1982).

on appeal,’ this Court also specified the issiie of

whether, in relation to the appellant’s conviction for

possession of child pornography, the Court,

exercising its mandate under Article 66(c), UCM,

10 U.S.C. § 866(c), to approve only such findings and

sentence that, in the opinion of the Court, should be

approved, has the power, in the interest of justice, to

set aside a finding of guilty that is otherwise

determined to be correct in law and fact. For the

reasons set forth below, we find the appellant was

not subjected to cruel and unusual punishment.

However, we answer the specified issue in the

affirmative, set aside the conviction for possession of

child pornography, and reassess the sentence.

Crue/ and Unusual Punishment

We review claims of cruel and unusual post-trial

punishment de novo. United States v. Wise. 64 M.J.

468, 473 (C.A.A.F. 2007): United States v. Pena, 64

M.J. 259, 265 (C.A.A.F. 2007). Absent evidence that

the appellant has been subjected to one or more of

certain enumerated punishments specifically

prohibited by Article 55, UCMJ, we apply the same

standard to claims of Eighth Amendment and Article

’ Although the appellant did not raise this issue on

appeal, his post-trial submissions to the convening

authority asked that the convening authority not

approve the finding of guilty to possession of child

pornography, for reasons similar to those enunciated

in this opinion.

54a

55, UCM violations. Pena, 64 M.J. at 265.4 To

prevail, the appellant “must show: (1) an objectively,

sufficiently serious act or omission resulting in the

denial of necessities: (2) a culpable state of mind on

the part of prison officials amounting to deliberate

indifference to [his] health and safety: and (3) that

he ‘has exhausted the prisoner-grievance system

land] petitioned for relief under Article 138, UCM4,

10 {U.S.C.] § 988.” United States v. Lovett, 63 M.J.

211, 216 (C.A.A.F. 2006) (footnotes and citations

omitted).

The appellant’s claim arises from his post-trial

stay in a local civilian confinement facility, the

Burlington County Jail, Mount Holly, New Jersey,

and is supported by a personal affidavit. According

to the appellant, he was held at the Burlington

County facility for 23 days before being transferred

to a military facility.® During that time, the

appellant avers he was:

4 In addition to prohibiting “cruel or unusual

punishment,” Article 55, UCMJ, 10 U.S.C. § 855,

prohibits “[plunishment by flogging or by branding,

marking, or tattooing” and “the use of irons ... except

for the purpose of safe custody.” None of the specific

prohibitions are at issue here.

* A letter submitted by the government from the

Burlington County Corrections Department

indicates the appellant was confined at the county

facility for 21 days. Without deciding, we assume for

purposes of our evaluation that the greater time

period asserted by the appellant is accurate.

1. Housed in a two-person cell with two other

inmates, leaving nearly no reom to move around:

2. Forced to sleep on a mat on the floor, in front of

and touching the toilet, because both beds were

occupied by the other inmates:

3. Denied soap, deodorant, a razor, and toothpaste

for 14 days as the result of a prison supply issue:

4. Exposed to second-hand marijuana smoke;

5. Denied a blanket for four days after another

inmate stole his and “sold” it for cookies:

6. Denied medical assistance after he was

accidentally hit with pepper spray when the guards

tried to break up a fight between other inmates; and,

7. Denied a crutch, pain medication, and physical

therapy for a documented back problem, causing him

ere daily pain.” Lack of a crutch also denied him

access to the gym, lhbrary, and other unspecified

activities afforded other prisoners because he could

not use stairs without it.

In addition, the appellant claims that inmates

gave haircuts to other inmates without cleaning the

iazor between haircuts. However, the appellant

does not state whether or not he personally had his

hair cut in that manner.

Setting aside, for the moment, the two medical

treatment concerns, none of the other conditions

enumerated by the appellant constitute cruel and

unusual punishment under the standards

established by our superior courts. While such

conditions may very well have made the appellant

less comfortable than he might have liked, neither

the Eighth Amendment nor Article 55, UCMd,

mandate “comfortable prisons.” Farmer v. Brennan,

511 U.S. 825, 837 (1994) (quoting PRAodes v.

Chapman, 452 U.S. 337, 349 (1981)); see also Pena,

64 M.J. at 265. Rather, the challenged conditions

must constitute “objectively, sufficiently serious

actls] or omission|[s]” that resulted in “an excessive

risk te inmate health or safety” knowingly

disregarded by prison officials. Lovett, 683 M.J. at

215-16 (quoting Brennan, 511 U.S. at 887).

Accepting the appellant’s assertions at face value,

the conditions he describes simply do not rise to that

level.

Turning to the asserted medical concerns, we

note that “[dlenial of adequate medical attention can

constitute an Eighth Amendment or Article 55],

UCMJ,] violation.” United States v. White, 54 M.J.

469, 474 (C.A.A.F.2001) (citing United States v.

Sanchez, 53 M.J. 393, 396 (C.A.A.F. 2000)).

However, medical care provided to inmates need

only be reasonable, not “perfect” or “the best

6 We assume, without deciding, that the appellant's

description of the living conditions and his treatment

at the Burlington County Jail is accurate.

57a

obtainable.” Jd. at 475 (quoting Harris v. Thigpen,

941 F.2d 1495, 1510 (11th Cir.1991)).

The appellant has not met his burden of

establishing that he was denied reasonable medical

care. With regard to the pepper spray incident, the

appellant avers only that he was accidentally

sprayed and was not offered medical assistance. He

has provided no evid: <ce, or even asserted, that he

was physically injured by the spray or required

medical treatment. With regard to treatment of the

appellant’s asserted back problem, the DD Form

2707, Confinement Order, included in the record of

trial indicates that at the time he entered

confinement, he was being treated for sciatica and

was using a crutch. Although the appellant avers he

alse had a “documented” need for pain medication

(Percocet), he has provided no such documentation

and it is not included on the confinement order.

However, even accepting at face value the

appellant’s assertion that he had been prescribed

such medication at the time he entered confinement,

he does not prevail on this issue. It is clear from the

appellant’s own affidavit that the decision to

discontinue the pain medication and use of the

crutch was made by the medical staff at the

Burlington County Jail. Although it is evident the

appellant found that change in his medical regimen

objectionable, he has provided no evidence that such

medical determination was unreasonable.

Having concluded that the conditions complained

of by the app» lant did not constitute cruel or

unusual treatment, we need not address whether or

58a

not he exhausted his administrative remedies before

seeking judicial redress.

Child Pornography

The adultery, sodomy, child pornography, and

Article 92, UCMJ, offenses all arose out of the

appellant’s love affair with a 17-year-old. During the

course of that relationship, the appellant’s paramour

sent him, via the Internet, several nude or partially

nude pictures of herself, including a video clip in

which she is naked. The appellant, with his

girlfriend’s knowledge and con ent, also took some

nude pictures of her, including some depicting the

couple engaged in a sex act. The appellant did not

distribute the pictures to others, but simply retained

them on his home computer, where they were found

after his wife reported the adulterous affair.

Because the appellant’s girlfriend was 17 at the time

the pictures were taken, the appellant’s possession of

the images was technically in violation of the

prohibitions on child pornography, for which

purposes a “minor” is anyone under the age of 18. 18

U.S.C. § 225601). Thus, the appellant was in the

unique position of having a _ relationship with

someone he could legally see naked and, but for his

existing marriage, legally have sex with, but could

not legally possess nude pictures of her that she took

and sent to him.? Having considered the entire

7 We note that other than as a matter of adultery

because of his existing marriage, tne relationship

between the appellant and his paramour was not a

crime under Canadian law or the law of the State of

59a

record, we conclude that the appellant’s possession of

the photos under these circumstances is not the sort

of conduct which warrants criminal prosecution for

possessing child pornography and_ that _ this

conviction unreasonably exaggerates the criminality

of his conduct. The question is whether we can set

aside the conviction on that basis alone, even though

we find no legal error and the appellant never raised

an issue at trial, pleading guilty to that offense. The

government, in response to the specified issue,

unconvincingly argues that neither the plain

language of the statute, its legislative history, nor

case precedent indicates the Court can set aside a

finding of guilty that is found correct in law and fact.

We disagree on all points.

Article 66(c), UCMJ, provides that this Court

“may affirm only such findings of gui/ty 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.”

(Emphasis added). The plain language of this

provision effectively establishes a

three-pronged constraint on lour] authority

to affirm. (lo affirm the findings and

sentence, wel must be satisfied that the

findings and sentence are (1) “correct in law,”

and (2) “correct in fact.” [However, e]ven if

these first two prongs are satisfied, the

[Clourt may affirm only so much of the

New York, where their liaisons occurred, or under

the UCM J.

60a

findings and sentence as “[we determine], on

the basis of the entire record, should be

approved.”

United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.

2002) (citing United States v. Powell, 49 M.J. 460,

464-65 (C.A.A.F. 1998)) (emphasis added). Thus, it

is clear that we can overturn a finding or sentence,

even if it is correct in law and fact, if we find that it

should not be approved. Further, while our power to

overturn a finding or sentence based on an error of

law is limited by the Article 59(a), UCMJ, 10 U.S.C.

§ 859(a), requirement that the error materially

prejudice a substantial right of the accused, that

limitation does not apply to prongs two and three.

Id. “A clearer carte blanche to do justice would be

difficult to express.” United States v. Claxton, 32

M.J. 159, 162 (C.M.A. 1991) (citations omitted), “If

the Court ..., in the interest of justice, determines

that a certain finding or sentence should not be

approved ... the [Clourt need not approve such

finding or sentence.” /d. While most cases that have

addressed this power have done so within the

context of sentence appropriateness determinations,

the plain language of the statute, and the quoted

decisions, make clear that it is not limited to that

application.

The legislative history of Article 66, UCM, also

supports this Court’s broad authority to overturn a

finding or sentence, even in the absence of legal or

factual error. The current language of Article 66(c),

UCMJ, is virtually identical to the original version

enacted as part of the Uniform Code of Military

Ola

Justice ian 1950 lO U.S.C. § &866fe) Coriginally

enacted in Pub.L. No. 81-506, art. 66(c), 64 Stat. 107,

128 (1950)). Formal committee reports on the then

new UCM directly addressed only the power of the

boards of review to set aside all or part of a sentence

if they deemed it “inappropriate.” 5S. REP. NO. 81

486 (1949); H.R. REP. NO. 81-491 (1949). However,

it is clear from the hearings on the proposed

legislation that some commentators recognized the

broad authority the same provision gave the boards

of review to overturn findings even in the absence of

legal error, and specifically advised Congress of

such. In this regard, Major General (Maj Gen)

Kenneth FF. Cramer, Chief, National Guard Bureau,

In a statement presented to Congress by Maj Gen

Raymond H. Fleming, observed that under the new

Article 66, UCM.J, provision, the “boards of review

are to be given extremely wide discretionary powers

which will enable them to overrule, with or without

legal reasons, the actions of courts and of all

appointing authorities.” Uniform Code of Military

Justice’ Hearing on H.R. 2498 Belore a Subcomm. of

the H.R. Comm. On Armed Services, &\st Cong. 772

(1949). The Judge Advocate General of the Army,

Maj Gen ‘Thomas H,. Green, made the same point in

hearings before the Senate. In a prepared

statement, Maj Gen Green complained that the

Article 66(c), UCMJ, language currently at issue

here

authorizes (the boards of review] to consider

other than legal matters in determining

what part of a finding or the sentence should

be approved For example, a board may

{> an

consider that a given order which an accused

is charged with having violated is unwise

and that therefore, on the basis of the entire

record, a finding should be disapproved

This makes possible an unwarranted

invasion of the command prerogative and

would authorize the board of review. to

substitute its judgment on military policy for

that of the commander in the field This

determination under the proposed bill would

be absolutely final. | could not appeal that

cause to the Court of Military Appeals hecmuse

the board’s determination would not be

based on a question of law

Uniform Code of Military Justice’ Hearing on 8. &57

and H.R. 4080 Before a Subcomm. of the S. Comm

on Armed Services, &\st Cony. 258% (1949)

In response to questions by members of the

Senate committee, Maj Gen Green reiterated that

the language of Article 6642), UCMd, “would give the

board of review ... the power to determine whether or

not the findings and sentence are appropriate.” /d

at 263. Based on those concerns, May Gen Creen

proposed substantial revisions to the version of

Article 66(c), UCMd, which, if adopted, would have

sharply curtailed the power of the boards of review

to overturn findings. /d. at 263°64. Conyress did not

adopt those changes, but enacted Article 66)

UCMJ, in the form proposed, which remains

essentially unchanged to this day Having found

that we have the power to overturn the appellant's

conviction for possession of child pornography even

filtas

in the absence of legal or faetual error, we determine

to do seo here.

As previously noted, we find that under the

unique circumstances of this ease, the charge of

possession of child) pornography to whieh the

appellant pled and was found guilty, thoaph

technically accurate, unreasonably exayperates the

criminality of the appellants actions. ‘That ts

particularly true given the facet that a convietion for

child pornography would require that the appellant

to reguster as a sex offender and the significant

consequences of such registration, imeluding the

restrictions common to most states on where those

repistered may reside within any given community

Based on the unique facets of this case, as set

forth in the reeord, considering the profound

implications of a conviction of possession of child

pornography, and relying on the broad mandate

provided this Court by Congress under Artich: 66(e),

UCMJ, we determine that the appellant's conviecion

for possession of child pornography should not) be

approved. — Accordingly, the finding of putty to

Specification to oof Charge Vitis set aside and

dismissed,

Sentence Reassessment

Having set aside the finding of pualty to the

possession of child) pornography offense, we must

determine whether a rehearmy on sentence ts

required, If we can determine to our satisfaction

that, absent the finding of guilty to Specification bof

O4a

Charge VI, the military judge would have adjudged a

sentence of at least a certain severity, we may

reassess the sentence. United States v. Moffeit, 68

M.J. 40, 41 (C.ALA.F. 2006) (citing Unrted States v.

Sales, 22 M.J. 305, 308 (C.M.A. 1986)). Applying

this analysis, and after careful consideration of the

entire record, we are satisfied beyond a reasonable

doubt that, in the absence of Specification 1. of

Charge VI, the military judge would still have

adjudged the same sentence, and so reassess the

sentence accordingly. By far the most serious of the

appellant’s conduct was his larceny and wrongful

disposition of military property, followed, to a lesser

extent, by the adultery and Article 92, UCM,

offenses. Within the unique circumstances of this

case, the appellant’s possession of what was

technically child pornography was merely incidental

to the adulterous relationship.

Conclusion

The findings, as amended, and the sentence, as

reassessed, are correct in law and fact and no error

prejudicial to the substantial rights of the appellant

occurred. Article 66(c), UCMJ: United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly,

the findings, as amended, and the sentence, as

reassessed, are

AFFIRMED.

65a

APPENDIX D

UNIPED STATES AIR FORCE COURT OF

CRIMNAL APPEALS

United States,

Appellee

Senior Airman (-4)

MICHAEL T. NERAD, USAF,

Appellant

ACM 86994

ORDER

Panel No. 3

On 26 June 2009, counsel for the United States

filed a Motion for Reconsideration and

Reconsideration An Banc of the Court’s 29 May 2009

decision setting aside the appellant’s conviction for

possession of child pornography. United States v.

Nerad, M..J. (A.F. Ct. Crim. App.).

On 26 June 2009, counsel for the United States

filed a Motion for Oral Argument.

On 29 June 2009, counsel for the United States

filed a Motion for Leave to File Corrected Copy of

b6a

Motion for Reconsideration and Reconsideration Kz

Bane.

On 2 July 2009, counsel for the appellant moved

the court to return the United States motion without

action for failure to comply with Rule 15(a) of this

Court's Rules of Practice and Procedure, which

specifies in part that references to matters contained

in the record must. be properly annotated to reflect

the page numbers and exhibits from which they are

draw.

Accordingly, it 1s by the Court on this 6th day of

July, 2009,

ORDERED:

That the United States’ Motion for Leave to File

Corrected Copy of Motion for Reconsideration and

Reconsideration En Banc is hereby GRANTED.

That the Umted States’ Motion for Oral

Argument is hereby DENIED.

That the United States’ Motion tor

Reconsideration and Reconsideration Kn Bence is

hereby DENIED.

That the appellant's Motton to Return the

Motion for Reconsideration on Behalf of United

States Due to Non-Compliance with this Court's

Rules is DENIED as moot.

O7a

APPENDIX E

1O U.S.C. $866, Article 66, UCMJ, Review by Court

of Criminal Appeals

(a) Each Judge Advocate General shall establish a

Court of Criminal Appeals which shall be composed

of one or more panels, and each such panel shall be

composed of not less than three appellate military

judges. For the purpose of reviewing court-martial

cases, the court may sit in panels or as a whole in

accordance with rules prescribed under subsection

(). Any decision of a panel may be reconsidered by

the court sitting as a whole in accordance with such

rules. Appellate military judges who are assigned to

a Court of Criminal Appeals may be commissioned

officers or civilians, each of whom must be a member

of a bar of a Federal court or of the highest court of a

State. The Judge Advocate General shall designate

as chief judge one of the appellate military judges of

the Court of Criminal Appeals established by him.

The chief judge shall determine on which panels of

the court the appellate judges assigned to the court

will serve and which military judge assigned to the

court will act as the semor judge on each panel.

(b) The Judge Advocate General shall refer to a

Court of Criminal Appeals the record in each case ot

trial by court-martial—

(1) in which the sentence, as approved,

extends to death, dismissal of a commissioned

officer, cadet, or midshipman, dishonorable or bad-

bSa

conduct discharge, or confinement for one year or

more: and

(2) except in the case of a sentence extending

to death, the right to appellate review has not been

waived or an appeal has not been withdrawn under

section 861 of this title (article 61).

Appeals may act only with respect to the findings

and sentence as approved by the convening

authority. It 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. In considering the record, it may weigh

the evidence, judge the credibility of witnesses, and

determine controverted questions of fact, recognizing

that the trial court saw and heard the witnesses.

(d) If the Court of Criminal Appeals sets aside the

findings and sentence, it may, except where the

setting aside is based on lack of sufficient evidence

in the record to support the findings, order a

rehearing. If it sets aside the findings and sentence

and does not order a rehearing, it shall order that

the charges be dismissed.

(e) The Judge Advocate General shall, unless there is

to be further action by the President, the Secretary

concerned, the Court of Appeals for the Armed

Forces, or the Supreme Court, instruct’ the

convening authority to take action in accordance

with the decision of the Court of Criminal Appeals.

69a

If the Court of Appeals for the Armed Forces has

ordered a rehearing but the convening authority

finds a rehearing impracticable, he may dismiss the

charges.

(f) The Judge Advocates General shall prescribe

uniform rules of procedure for Courts of Criminal

Appeals and shall meet periodically to formulate

policies and procedure in regard to review of court-

martial cases in the offices of the Judge Advocates

General and by Courts of Criminal Appeals.

(o>) No member of a Court of Criminal Appeals shall

be required, or on his own initiative be permitted, to

prepare, approve, disapprove, review, or submit,

with respect to any other member of the same or

another Court of Criminal Appeals, an effectiveness,

fitness, or efficiency report, or any other report or

document used in whole or in part for the purpose of

determining whether a member of the armed forces

is qualified to be advanced in grade, or in

determining the assignment or transfer of a member

of the armed forces, or in determining whether a

member ef the armed forces should be retained on

active duty.

(h) No member of a Court of Criminal Appeals shall

be eligible to review the record of any trial if such

member served as investigating officer in the case or

served as a member of the court-martial before

which such trial was conducted, or served as military

judge, trial or defense counsel, or reviewing officer of

such trial.

(Oa

1O U.S.C. §867, Article 67, UCMJ, Review by the

Court of Appeals for the Armed Forces

(a) The Court of Appeals for the Armed Forces shall

review the record in

(1) all cases in which the sentence, as affirmed

by a Court of Criminal Appeals, extends to death:

(2) all cases reviewed by a Court of Criminal

Appeals which the Judge Advocate General orders

sent to the Court of Appeals for the Armed Forces for

review; and

(3) all cases reviewed by a Court of Criminal

Appeals in which, upon petition of the accused and

on good cause shown, the Court of Appeals for the

Armed Forces has granted a review.

(b) The accused may petition the Court of Appeals

for the Armed Forces for review of a decision of a

Court of Criminal Appeals within 60 days from the

earlier of—

(1) the date on which the accused is notified of

the decision of the Court of Criminal Appeals: or

(2) the date on which a copy of the decision of

the Court of Criminal Appeals, after being served on

appellate counsel of record for the accused Gf any), is

deposited in the United States mails for delivery by

first-class certified mail to the accused at an address

provided by the accused or, if no such address has

ila

been provided by the accused, at the latest address

listed for the accused in his official service record.

The Court of Appeals for the Armed Forces shall act

upon such a petition promptly in accordance with

the rules of the court.

for the Armed Forces may act only with respect to

the findings and sentence as approved by the

convening authority and as affirmed or set aside as

incorrect in law by the Court of Criminal Appeals.

In a case which the Judge Advocate General orders

sent to the Court of Appeals for the Armed Forces,

that action need be taken only with respect to the

issues raised by him. In a case reviewed upon

petition of the accused, that action need be taken

only with respect to issues specified in the grant of

review. The Court of Appeals for the Armed Forces

shall take action only with respect to matters of law.

(d) If the Court of Appeals for the Armed Forces sets

aside the findings and sentence, it may, except

where the setting aside is based on lack of sufficient

evidence in the record to support the findings, order

a rehearing. If it sets aside the findings and

sentence and does not order a rehearing, it shal!

order that the charges be dismissed.

(e) After it has acted on a case, the Court of Appeals

tor the Armed Forces may direct the Judge Advocate

General to return the record to the Court of Criminal

Appeals for further review in accordance with the

decision of the court. Otherwise, unless there is to

be further action by the President or the Secretar,

concerned, the Judge Advocate General shall

instruct the convening authority to take action in

accordance with that decision lf the court ha

ordered a rehearing, but the convening authority

finds a rehearing impracticable, he may dismiss th

charge:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.