# Petition for Writ of Certiorari — Nerad v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1065

## Text

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.
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

23

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

24

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

25

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.

26
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).

2a
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

3a

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).

4a

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.

l.
A.

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.

5a

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,

B.

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

6a

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

Qa

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).

A.

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).

B.

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.

~

c.

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

1)

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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bina
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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

V.
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).

(c) In a case referred to it, the Court of Criminal
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.

(c) In 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.
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:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2640%3A1. Public record. Not legal advice.