United States v. Brubaker-Escobar ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jacob L. BRUBAKER-ESCOBAR, Sergeant
United States Army, Appellant
No. 20-0345
Crim. App. No. 20190618
Argued March 9, 2021—Decided June 4, 2021
Military Judges: Douglas K. Watkins and Maureen A. Kohn
For Appellant: Captain Alexander N. Hess (argued); Colonel
Michael C. Friess, Lieutenant Colonel Angela D. Swilley,
Major Kyle C. Sprague, and Captain Nandor F. R. Kiss (on
brief).
For Appellee: Captain Amanda L. Dixson (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
and Major Craig Schapira (on brief).
Chief Judge STUCKY delivered the opinion of the Court,
in which Judge MAGGS and Judge HARDY joined. Judge
OHLSON filed a separate opinion concurring in the re-
sult, in which Judge SPARKS joined.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
Upon the advice of the staff judge advocate, the convening
authority applied the provisions of the Military Justice Act of
20161 (MJA) and took no action on the findings or sentence
adjudged in Appellant’s court-martial. The United States
Army Court of Criminal Appeals (CCA) determined that, in
light of that court’s precedent, which relied on the President’s
executive order in implementing the MJA, the convening au-
thority’s failure to take action on the sentence was error but
the error was neither jurisdictional nor prejudicial to Appel-
lant’s substantial rights. United States v. Brubaker-Escobar,
No. ARMY 20190618, slip op. at 1 n.* (A. Ct. Crim. App. June
1 National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, §§ 5001–5542, 130 Stat. 2000, 2894–2968 (2016).
United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
9, 2020) (per curiam). The court affirmed the adjudged find-
ings and sentence. Id. slip op. at 1.
We granted review of Appellant’s petition in which he
argued that the convening authority erred in failing to act on
his case, that this error deprived the CCA of jurisdiction to
hear his appeal and, therefore, the case must be remanded to
the convening authority for action. After oral argument, we
specified an issue, asking whether the President’s executive
order implementing the MJA was lawful in requiring
convening authorities to apply the post-trial procedures for
taking action in effect on the date of the earliest offense. We
hold that, as applied to this case, the executive order was not
lawful, and the convening authority properly complied with
the MJA.
I. Background
Consistent with his plea agreement, Appellant pled guilty
to, and was convicted at a general court-martial of five
specifications of maltreating subordinates and one
specification of assault consummated by a battery, all
offenses occurring during 2018. Articles 93 and 128, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 893, 928
(2018). The plea agreement limited the discharge that could
be adjudged to a bad-conduct discharge and the confinement
that could be adjudged to twelve months. The military judge
sentenced Appellant to a bad-conduct discharge and
reduction to the grade of E-1.
The staff judge advocate advised the convening authority
that he could not take action on the findings but could disap-
prove the reduction to the grade of E-1. He recommended the
convening authority “take no action on the findings and sen-
tence.” The convening authority signed a form entitled “Con-
vening Authority Action,” stating he was taking “No Action.”
II. The CCA’s Decision
At the CCA, pursuant to United States v. Grostefon, 12
M.J. 431, 435 (C.M.A. 1982), Appellant personally asserted
that the convening authority erred by failing to take action on
the sentence. Relying on its previous precedent, United States
v. Coffman, 79 M.J. 820, 822 n.6 (A. Ct. Crim. App. 2020), the
CCA concluded, in a footnote to its per curiam “decision,” that
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Opinion of the Court
the convening authority’s failure to take action on the sen-
tence was error “that was neither jurisdictional nor prejudi-
cial to appellant’s substantial right to seek clemency from the
convening authority.” Brubaker-Escobar, No. ARMY
20190618, slip op. at 1 n.*.
In Coffman, citing the President’s executive order imple-
menting the MJA, the CCA stated that in cases such as Ap-
pellant’s, where at least one of the offenses was committed
before January 1, 2019, “the version of Article 60, UCMJ, ap-
plicable to an accused’s court-martial will be that version in
effect on the earliest date of misconduct for which an accused
was convicted. Exec. Order 13825, 83 Fed. Reg. at 9890.” 79
M.J. at 822. The court held that the convening authority’s
failure to act, although error, did not deprive the CCA of ju-
risdiction, and could be tested for prejudice. Id. at 823–24.
III. Standard of Review
The Government argues that we should review for plain
error because (1) Appellant did not raise the issue at trial; and
(2) Appellant failed to challenge the convening authority’s
lack of action before the military judge issued the entry of
judgment. Of course, as the convening authority does not act
until after the findings and sentence are adjudged, it was im-
possible for Appellant to have raised this issue at trial. And
the military judge appears to have entered judgment prema-
turely. Either party may file a motion to correct the convening
authority’s action within five days of receipt. Rule for Courts-
Martial (R.C.M.) 1104(b)(2)(B). By entering judgment the day
after the convening authority’s entry of “No Action,” the mili-
tary judge short-circuited Appellant’s ability to file an objec-
tion, under R.C.M. 1104(b)(1)(F), to the convening authority’s
refusal to take action.
“The courts of criminal appeals are courts of limited
jurisdiction, defined entirely by statute.” United States v.
Arness, 74 M.J. 441, 442 (C.A.A.F. 2015) (citing United States
v. Politte, 63 M.J. 24, 25 (C.A.A.F. 2006)). The scope of that
jurisdiction is a legal question this Court reviews de novo.
United States v. English, 79 M.J. 116, 121 (C.A.A.F. 2019).
We review a lower court’s construction of statutes and
executive orders de novo. See United States v. Idaho, 210 F.3d
1067, 1072 (9th Cir. 2000), aff’d, 533 U.S. 262 (2001); United
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United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
States v. Fetrow, 76 M.J. 181, 185 (C.A.A.F. 2017) (statutes
and rules).
IV. Discussion
In the MJA, Congress gave the President the authority to
designate the effective date of its provisions and the duty to
“prescribe in regulations whether, and to what extent, the
amendments made by this [act] shall apply to a case in which
one or more actions under [the UCMJ] have been taken before
the effective date of such amendments.” MJA § 5542(c)(1), 130
Stat. at 2967 (emphasis added). The President designated
January 1, 2019, as the effective date of the MJA, except as
otherwise provided in the MJA or his executive order. Exec.
Order No. 13,825 § 2(c), 83 Fed. Reg. 9889, 9890 (Mar. 1,
2018).
The President further ordered that, if an accused was
found guilty of any specification alleging the commission of at
least one offense before January 1, 2019:
Article 60, of the UCMJ, as in effect on the date of
the earliest offense of which the accused was found
guilty, shall apply to the convening authority . . . to
the extent that Article 60:
(1) requires action by the convening authority on the
sentence;
....
. . . or
(5) authorizes the convening authority to approve,
disapprove, commute, or suspend a sentence in
whole or in part.
Id. § 6(b).
All of Appellant’s offenses occurred in 2018. The charges
were preferred on May 13, 2019, and referred to trial by gen-
eral court-martial on June 26, 2019.
Appellant argues that the military judge was required,
under Article 60c(a)(1), UCMJ, as enacted in the MJA, to
enter judgment “in accordance with the rules prescribed by
the President.” By executive order, the President had
prescribed that, for cases in which any conviction was for an
offense committed before January 1, 2019, the pre-MJA rules
requiring convening authority action would apply. Action
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United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
under the pre-MJA Article 60 required the convening
authority to approve, disapprove, suspend, or commute the
sentence. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (2012
& Supp. I 2013–2014). The failure of the convening authority
to take action, Appellant contends, rendered the entry of
judgment invalid and thus required remand to the convening
authority for action.
Appellant’s reliance on the rules prescribed by the Presi-
dent in his executive order is misplaced. The current Article
60c(a)(1), UCMJ, 10 U.S.C. § 860c(a)(1) (2018), upon which
the President’s rules are based, provides: “In accordance with
rules prescribed by the President, in a general or special
court-martial, the military judge shall enter into the record of
trial the judgment of the court.” But nothing in Article
60c(a)(1) gives the President license to decide in which cases
the convening authority would no longer be required to take
action on the case. It merely allows the President to prescribe
the rules for the military judge to follow in entering the judg-
ment: how it is to be done and what shall be included in the
entry of judgment.
The CCA’s decision in this case and in Coffman is based
on reading the President’s executive order in isolation, with-
out considering the MJA. This the CCA cannot do. The MJA
granted the President authority to prescribe the extent to
which the provisions of the amendments shall apply to of-
fenses committed before the statute’s effective date but spe-
cifically restricted that authority to cases in which “one or
more actions under [the UCMJ] have been taken” before that
effective date. MJA § 5542(c)(1), 130 Stat. at 2967.
When questioned at oral argument, neither party was able
to address the apparent conflict between § 5542 of the MJA
and § 6(b) of the executive order. Therefore, we specified the
issue and ordered briefs.
In response, Appellant recognizes that “[b]ecause no ac-
tions were taken under the Code prior to January 1, 2019, in
this case, the President did not have authority under Section
5542 to say that the prior Article 60 supplants the newly-en-
acted Article 60a.” Nevertheless, he argues that § 6(b) of the
executive order was still applicable because, separate from
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Opinion of the Court
the MJA, the President was exercising the authority Con-
gress granted him in Article 36, UCMJ, 10 U.S.C. § 836(2018), to prescribe post-trial procedures.
Of course, the President’s authority to prescribe post-trial
rules is restricted; his rules “may not . . . be contrary to or
inconsistent with [the UCMJ].” Article 36(a), UCMJ. Section
6(b) of the executive order is inconsistent with the MJA to the
extent it orders convening authorities to apply pre-MJA post-
trial procedures to cases in which no UCMJ action was taken
before the MJA’s effective date, January 1, 2019.
On the other hand, the Government argues that § 6(b) was
valid because the word “action” in § 5542 was vague and could
encompass the commission of the offense, in addition to the
initiation of criminal charges under the UCMJ. In his supple-
mental reply brief, Appellant joins this meritless argument.
“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.” Gundy
v. United States, 139 S. Ct. 2116, 2126 (2019) (internal quota-
tion marks omitted) (quoting National Assn. of Home Build-
ers v. Defenders of Wildlife, 551 U.S. 644, 666 (2007)). The
MJA does not use the term “action[]” in isolation. The statute
says, “a case in which one or more actions under chapter 47
of title 10, United States Code (the Uniform Code of Military
Justice), have been taken.” MJA § 5542(c)(1), 130 Stat. at
2967. Clearly, that is not referring to the commission of an
offense under the UCMJ. It is referring to the initiation of
criminal action against an accused: the preferral of charges,
Article 30, UCMJ, 10 U.S.C. § 830 (2018), or in the case of an
accused who declines to accept nonjudicial punishment, the
notification of intent to impose nonjudicial punishment, Arti-
cle 15, UCMJ, 10 U.S.C. § 815 (2018).
The Government also argues that the President’s imple-
mentation of the MJA in § 6(b) of the executive order “elimi-
nated any ex post facto concerns related to the convening au-
thority’s clemency powers for offenses that occurred before
the implementation date of the MJA 2016,” and “[a] conclu-
sion that Congress so afforded the President the authority to
implement rules that would avoid such concerns is evident in
the text of the statute.” We find no support in the text of the
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United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
statute for the proposition that Congress provided the Presi-
dent such authority and the Government has not pointed to
any. Furthermore, the President is not authorized to pre-
scribe rules implementing the UCMJ that are contrary to or
inconsistent with the statute. Article 36(a), UCMJ.
We conclude that the amendments to Article 60 contained
in the MJA applied to Appellant’s case, the staff judge advo-
cate’s advice that the convening authority was not required to
act was correct, the convening authority’s failure to take ac-
tion was not error, and the CCA had jurisdiction to review
Appellant’s case. To the extent Coffman applied § 6 of the ex-
ecutive order to cases in which no action was taken under the
UCMJ before January 1, 2019, it is overruled.
V. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
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United States v. Brubaker-Escobar, No. 20-0345/AR
Judge OHLSON, with whom Judge SPARKS joins, con-
curring in the result.
The legality of Executive Order 13,8251 is a much closer
question than the majority opinion indicates, as demon-
strated by the fact that both Appellant and the Government
agree that the executive order was a valid exercise of the Pres-
ident’s rulemaking authority. Specifically, the parties take
the position that the term “action[]” as used in § 5542(c)(1) of
the Military Justice Act of 2016 (MJA)2 could encompass the
commission of a criminal offense rather than just governmen-
tal action. See Articles 77―134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 877―934 (2012). In addition, Ap-
pellant argues that the executive order was lawful because
“Article 36, UCMJ, provided the President additional author-
ity to promulgate Section 6(b) [of Exec. Order No. 13,825] be-
cause it grants additional rights to an accused that do not con-
flict with Article 60c, UCMJ,” 10 U.S.C. § 860c (2018). In my
view, both of these arguments by the parties are at least plau-
sible—and perhaps entirely persuasive.
We need not reach the merits of this point, however. Irre-
spective of the lawfulness of the executive order, Appellant
cannot prevail in this case, and I believe it is a wise exercise
of judicial restraint not to declare a president’s action to be
unlawful when such a determination is not required for the
disposition of a case. Therefore, I decline to adopt the major-
ity’s approach here. Nevertheless, both the majority and I
reach the same result: The judgment of the United States
Army Court of Criminal Appeals (CCA) should be affirmed.
The majority has explained why this is so if the executive or-
der is deemed unlawful. I now seek to explain why this is so
even if we adopt the position of both the Government and Ap-
pellant that the executive order was a valid exercise of the
President’s rulemaking authority. See United States v. La-
Grange, 3 C.M.R. 76, 78 (1952) (This Court has a duty “to rec-
oncile any conflicting provisions [of a statute and an executive
1 Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 1, 2018).
2 National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, § 5542, 130 Stat. 2000, 2967 (2016).
United States v. Brubaker-Escobar, No. 20-0345/AR
Judge OHLSON, concurring in the result
order] and to construe them, in so far as reasonably possible,
so as to be in harmony with each other.”).
Under § 6(b) of Exec. Order No. 13,825, the provisions of
the “old” Article 60, UCMJ, 10 U.S.C. § 860 (Supp. I 2014)—
rather than the provisions of the “new” Article 60a, UCMJ,
10 U.S.C. § 860a (2018)—apply to cases where at least one of
the offenses occurred before January 1, 2019. Because the of-
fenses in the instant case occurred before January 1, 2019,
the provisions of the old Article 60, UCMJ, would apply to Ap-
pellant’s case.
The old Article 60(c)(2)(A), UCMJ, states that “[a]ction on
the sentence of a court-martial shall be taken by the conven-
ing authority.”3 (Emphasis added.) As a result, a convening
authority errs if he fails to take one of the following mandated
post-trial actions in a case: approve, disapprove, commute, or
suspend the sentence of the court-martial in whole or in part.
Article 60(c)(2)(B), UCMJ. In the instant case, the convening
authority failed to take one of the required actions under the
old Article 60, UCMJ. He instead took “No Action.” Therefore,
the convening authority erred.
The effect of this error, however, depends on which version
of Article 66, UCMJ, is applicable to a specific case—the old
version at 10 U.S.C. § 866 (2012), or the new version at
10 U.S.C. § 866 (2018). The new version of Article 66, UCMJ,
is applicable to those cases that were preferred or referred on
or after January 1, 2019. Exec. Order No. 13,825 § 3. In the
instant case, the charges were referred after January 1, 2019.
Therefore, the new version of Article 66, UCMJ, applies here.
The new Article 66, UCMJ, automatically provides the
CCAs with jurisdiction when the military judge enters a judg-
ment into the record that includes a sentence of a bad-conduct
discharge. Article 66(b)(3), UCMJ. Here, the court-martial
sentenced Appellant to a bad-conduct discharge. Under the
old Article 60(c)(4)(A), UCMJ, the convening authority could
3 Under the provisions of the new Article 60a(a)(1)(A), conven-
ing authorities are no longer required to affirmatively take action
on the sentence. It states: “The convening authority . . . may act on
the sentence of the court-martial only as provided in subsection (b),
(c), or (d).” (Emphasis added.)
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Judge OHLSON, concurring in the result
not disturb this portion of the sentence.4 Consequently, the
convening authority’s error in taking “No Action” had no ef-
fect on the bad-conduct discharge sentence. Therefore, once
the military judge entered into the record a judgment includ-
ing a bad-conduct discharge, the Army CCA obtained jurisdic-
tion in this case. Article 66(b)(3), UCMJ.5 Therefore, the con-
vening authority’s erroneous failure to take action on the
sentence did not deprive the Army CCA of jurisdiction over
this case.6
Because the convening authority’s error was not jurisdic-
tional, it is instead procedural. Pursuant to Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2018), procedural errors are
“test[ed] for material prejudice to a substantial right to deter-
mine whether relief is warranted.” United States v. Alexan-
der, 61 M.J. 266, 269 (C.A.A.F. 2005) (citations omitted).
4 Under Rule for Courts-Martial (R.C.M.) 1109(c)(1), the con-
vening authority could not disapprove the bad-conduct discharge,
as a convening authority can “[m]odify a bad-conduct discharge . . .
only as provided in subsections (e) and (f).” (Emphasis added.)
R.C.M. 1109(e)(1) permits relief where “the accused has provided
substantial assistance in the criminal investigation or prosecution
of another person.” R.C.M. 1109(f) permits relief where the military
judge recommends a sentence suspension. Neither exception is ap-
plicable in this case.
5 As R.C.M. 1111(a)(2) details, “[t]he entry of judgment termi-
nates the trial proceedings and initiates the appellate process.”
6 In the past, this Court has indicated that a convening
authority’s failure to take action is a jurisdictional error depriving
the CCA of jurisdiction. See United States v. Politte, 63 M.J. 24, 25
(C.A.A.F. 2006) (“[T]he Courts of Criminal Appeals may hear a case
on the merits where: (1) a Judge Advocate General refers courts-
martial records to the court; (2) a convening authority has approved
the findings and sentence; and (3) the sentence as approved extends
to death, a dismissal, a punitive discharge or confinement for one
year or more.”); id. at 28 (Erdmann, J., joined by Baker, J.,
dissenting) (“The Court of Criminal Appeals should have reviewed
this action and found that it had no statutory authority to conduct
further review.”). However, the Court’s opinion in Politte was based
on the language of the prior version of Article 66(c), UCMJ. Because
the Article 66, UCMJ, language has changed, the convening
authority’s error is now procedural error and did not deprive the
CCA of jurisdiction.
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United States v. Brubaker-Escobar, No. 20-0345/AR
Judge OHLSON, concurring in the result
Generally, concerns about a convening authority’s deci-
sion memorandum should be addressed with the trial court
before the military judge signs the entry of judgment, as dic-
tated by R.C.M. 1104(b)(2)(B). An appellant’s failure to file a
post-trial motion within the allotted time forfeits his right to
object to the accuracy of the convening authority’s decision on
an action memorandum, absent plain error. Here, Appellant
failed to object and did not move to correct the decision on
action or entry of judgment. See R.C.M. 1104(b)(1)(F) (permit-
ting parties to file a post-trial motion alleging “error in the
convening authority’s action under R.C.M. 1109 or 1110”);
R.C.M. 1104(b)(2)(B) (“A motion to correct an error in the ac-
tion of the convening authority shall be filed within five days
after the party receives the convening authority’s action.”).7
Therefore, Appellant’s challenge to the convening authority’s
action is reviewed for plain error.
In order to prevail under plain error review, an appellant
must demonstrate that the error complained of was “clear or
obvious.” United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F.
2017) (internal quotation marks omitted) (citation omitted).
To determine whether error is clear or obvious at the time of
appeal, this Court will consider, among other circumstances,
whether the CCAs have “reached conflicting conclusions on
7 As the majority observes, the military judge entered judgment
the day after the convening authority’s entry of “No Action.” Under
R.C.M. 1111(a)(2), “[t]he judgment reflects the result of the court-
martial, as modified by any post-trial actions, rulings, or orders.
The entry of judgment terminates the trial proceedings and initi-
ates the appellate process.” Further, the military judge is only ena-
bled to sua sponte modify the entry of judgment under R.C.M.
1111(c)(1) for clerical or computational errors. Generally, then, the
military judge should resolve post-trial motions before the entry of
judgment. See Article 60(b)(2), UCMJ, 10 U.S.C. § 860(b)(2) (2018).
However, R.C.M. 1104(b)(2)(B) states that “[a] motion to correct
an error in the action of the convening authority shall be filed
within five days after the party receives the convening authority’s
action.” (Emphasis added.) R.C.M. 1104(b)(2)(B) provides no excep-
tion for instances when the military judge enters the judgment be-
fore that five-day period elapses. Thus, Appellant had the right to
file his post-trial motion within the five days allotted.
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Judge OHLSON, concurring in the result
the question” that is in issue. United States v. Gonzales, 78
M.J. 480, 486–87 (C.A.A.F. 2019).
In the instant case, Appellant cannot meet his burden of
demonstrating that the convening authority’s procedural er-
ror was clear or obvious because this whole area of the law is
a quagmire of confusion, as reflected in all of the disparate
CCA opinions.8 Therefore, Appellant is entitled to no relief.
Because I would affirm the decision of the lower court on
the grounds set forth in this opinion, I concur in the judgment
reached by the majority.
8 See generally United States v. Beavers, No. ACM S32651, 2021
CCA LEXIS 20, 2021 WL 237418 (A.F. Ct. Crim. App. Jan. 22, 2021)
(unpublished); United States v. Humpel, No. ACM S32622, 2021
CCA LEXIS 8, 2021 WL 96441 (A.F. Ct. Crim. App. Jan. 11, 2021)
(unpublished); United States v. Caffrey, No. ACM 39879, 2021 CCA
LEXIS 4, 2021 WL 79521 (A.F. Ct. Crim. App. Jan. 8, 2021) (un-
published); United States v. Lopez, No. ACM S32597, 2020 CCA
LEXIS 439, 2020 WL 7233070 (A.F. Ct. Crim. App. Dec. 8, 2020)
(unpublished); United States v. Cruspero, No. ACM S32595, 2020
CCA LEXIS 427, 2020 WL 6938016 (A.F. Ct. Crim. App. Nov. 24,
2020) (unpublished); United States v. Barrick, No. ACM S32579,
2020 CCA LEXIS 346, 2020 WL 5884489 (A.F. Ct. Crim. App. Sept.
30 2020) (unpublished); United States v. Finco, No. ACM S32603,
2020 CCA LEXIS 246, 2020 WL 4289983 (A.F. Ct. Crim. App. July
27, 2020) (unpublished); United States v. Coffman, 79 M.J. 820 (A.
Ct. Crim. App. 2020).
5