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 September 7, 2021
Military Judges: Douglas K. Watkins and Maureen A. Kohn
For Appellant: Major 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: Major Amanda L. Dixson (argued); Colonel
Steven P. Haight, Lieutenant Colonel Craig Schapira, and
Lieutenant Colonel Wayne H. Williams (on brief).
_______________
PER CURIAM.1
We hold that in any court-martial where an accused is
found guilty of at least one specification involving an offense
that was committed before January 1, 2019, a convening au-
thority errs if he fails to take one of the following post-trial
actions: approve, disapprove, commute, or suspend the sen-
tence of the court-martial in whole or in part. However, de-
pending upon the date that the charges were preferred or re-
ferred and depending upon the sentence that was adjudged,
such an error does not necessarily deprive a Court of Criminal
Appeals of jurisdiction. In the instant case, the charges were
referred after January 1, 2019, and a bad-conduct discharge
1 Oral argument for this case was held on March 9, 2021, when
Chief Judge Stucky was still serving as an active judge on the
Court. On July 31, 2021, Chief Judge Stucky’s term expired. See
Article 142(b)(2), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 942(b)(2) (2018). Pursuant to Article 142(e)(1), UCMJ, 10
U.S.C. § 942(e)(1) (2018), he continues to serve on this case in a
senior status.
United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
was adjudged. Under these circumstances, we conclude that
the United States Army Court of Criminal Appeals (ACCA)
had jurisdiction to review Appellant’s case despite the proce-
dural error committed by the convening authority. We further
conclude that Appellant is entitled to no relief here because
the convening authority’s error was harmless.
I. Background
Appellant was convicted at a general court-martial, pur-
suant to his pleas, of five specifications of maltreating subor-
dinates and one specification of assault consummated by a
battery. Articles 93 and 128, UCMJ, 10 U.S.C. §§ 893, 928
(2018). Appellant committed these offenses in 2018 but the
charges were not referred until June 2019. The military judge
sentenced Appellant to a bad-conduct discharge and reduc-
tion to the grade of E-1.
As part of the clemency process, the staff judge advocate
advised the convening authority that the provisions of the
Military Justice Act of 2016 (MJA),2 which generally became
effective on January 1, 2019, applied to Appellant’s case.
Thus, unlike in prior cases where the convening authority
was required under the provisions of the old version of Article
60, UCMJ,3 to approve, disapprove, commute, or suspend a
sentence in whole or in part, the staff judge advocate indi-
cated that pursuant to the provisions of the new Article 60a,
UCMJ,4 the convening authority in Appellant’s case (a) was
not authorized to take action on the findings or on the ad-
judged bad-conduct discharge, (b) could disapprove Appel-
lant’s reduction to the grade of E-1 if he deemed it appropri-
ate, or (c) could take no action at all in regard to Appellant’s
sentence. The convening authority thereafter signed a form
entitled “Convening Authority Action” stating he was taking
“No Action” in this case.
On appeal, the ACCA cited its own precedent of United
States v. Coffman, which held that the President’s executive
2 The MJA is a division of the National Defense Authorization
Act for Fiscal Year 2017 (NDAA 2017), Pub. L. No. 114-328,
§§ 5001–5542, 130 Stat. 2000, 2894–2968 (2016).
3 10 U.S.C. § 860 (2012 & Supp. I 2013–2014).
4 10 U.S.C. § 860a (2018).
2
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Opinion of the Court
order implementing the MJA provides that in cases where at
least one of the offenses was committed before January 1,
2019, “the version of Article 60, UCMJ, applicable to an
accused’s court-martial will be that version in effect on the
earliest date of misconduct for which an accused was
convicted.” 79 M.J. 820, 822 (A. Ct. Crim. App. 2020) (citing
Exec. Order No. 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (Mar.
1, 2018)). Thus, the CCA held, the provisions of the old Article
60 rather than those of the new Article 60a applied to the
instant case, and the convening authority’s failure to take
action on the sentence as required by the old Article 60 was
error. However, the CCA further concluded that the error was
neither jurisdictional nor prejudicial to Appellant’s
substantial rights. United States v. Brubaker-Escobar, No.
ARMY 20190618, slip op. at 1 n.* (A. Ct. Crim. App. June 9,
2020) (per curiam). The court then affirmed the adjudged
findings and sentence. Id. at 1.
We granted review of Appellant’s petition in which he ar-
gued that the convening authority erred in taking “no action”
in his case, and that this error deprived the CCA of jurisdic-
tion to hear his appeal under Article 66, UCMJ, 10 U.S.C.
§ 866 (2018).5 Appellant sought a remand of his case to the
convening authority for appropriate action. After oral argu-
ment, we specified an issue which asked whether the Presi-
dent’s executive order implementing the MJA was lawful
when it required convening authorities to apply the post-trial
procedures for taking action on findings and sentence that
were in effect on the date of an appellant’s earliest offense.6
We hold that Exec. Order No. 13,825 was a valid exercise
of the President’s rulemaking authority. We therefore further
hold that the convening authority erred by taking “no action”
5 The granted issue was as follows: “Whether the convening au-
thority’s failure to take action on the sentence as a result of the staff
judge advocate’s erroneous advice deprived the Army court of juris-
diction under Article 66, UCMJ.”
6The specified issue was as follows: “Whether Section 6(b) of
Executive Order 13,825 of March 1, 2018 was a lawful exercise of
the authority delegated to the President by Section 5542(c)(1) of the
National Defense Authorization Act for fiscal year 2017 or by any
other law.”
3
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Opinion of the Court
in this case pursuant to the new Article 60a rather than by
taking one of the specified actions required under the old Ar-
ticle 60. However, we conclude that the convening authority’s
determination did not constitute plain error. Accordingly, we
affirm the judgment of the CCA for the reasons stated below.7
7 On June 4, 2021, this Court issued a prior opinion in this case,
holding that, “as applied to this case, the executive order was not
lawful, and the convening authority properly complied with the
MJA.” United States v. Brubaker-Escobar, No. 20-0345, 2021 CAAF
LEXIS 508, at *2, 2021 WL 2303088, at *1 (C.A.A.F. June 4, 2021).
On June 14, 2021, the time for reconsideration of our decision
expired. C.A.A.F. R. 31(a). On June 22, 2021, we issued the
mandate pursuant to C.A.A.F. R. 43A. On June 30, 2021, appellate
defense counsel and appellate government counsel filed untimely
petitions for reconsideration, citing for the first time § 531(n)(1) of
the National Defense Authorization Act of Fiscal Year 2018 (NDAA
2018), Pub. L. No. 115-91, 131 Stat. 1283, 1387 (2017). This
provision of NDAA 2018 amended MJA § 5542(c)(1) so as to
authorize the President to prescribe which MJA amendments apply
when an offense occurred before January 1, 2019. And importantly,
the President promulgated Exec. Order No. 13,825 several months
after the enactment of NDAA 2018. On June 29, 2021, the Army
Court issued the Certificate of Completion of Appellate Review. On
that same day the parties filed a joint motion to withdraw the
mandate with this Court. On July 19, 2021, we granted the joint
motion to withdraw the mandate and vacated our opinion of June
4, 2021. United States v. Brubaker-Escobar, __ M.J. __ (C.A.A.F.
2021) (granting petition for reconsideration, recalling mandate, and
vacating judgment). We also granted Appellant’s and Appellee’s
joint motion to file petitions for reconsideration out of time. We took
these steps to prevent the “grave, unforeseen” consequence of
erroneously invalidating a provision of Exec. Order No. 13,825
based on the initial failure of the parties to cite MJA § 5542(c)(1).
United States v. Dearing, 64 M.J. 364, 364 (C.A.A.F. 2006)
(summary disposition) (quoting Calderon v. Thompson, 523 U.S.
538, 550 (1998)); see also Legate v. Maloney, 348 F.2d 164, 166 (1st
Cir. 1965) (If a situation arose . . . which showed that our original
judgment was demonstrably wrong, a motion to recall mandate
might be entertained.”); United States v. Wiesen, 57 M.J. 48, 49
(C.A.A.F. 2002) (“To be successful on a petition for reconsideration,
the petition must demonstrate that the Court misconstrued or
overlooked an issue of law or fact.”) We note that at the time we
granted the joint motion to withdraw the mandate, the parties had
not filed a petition for a writ of certiorari with the Supreme Court,
the time to file such a petition had not yet expired, and Appellant’s
discharge had not yet been executed.
4
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Opinion of the Court
II. Standard of Review
“The courts of criminal appeals are courts of limited juris-
diction, 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 ju-
risdiction 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 execu-
tive orders de novo. See United States v. Idaho, 210 F.3d 1067,
1072 (9th Cir. 2000), aff’d, 533 U.S. 262 (2001) (treaties, stat-
utes, and executive orders); United States v. Fetrow, 76 M.J.
181, 185 (C.A.A.F. 2017) (statutes and rules).
III. Discussion
In the Military Justice Act of 2016, Congress gave the
President the authority to designate the effective date of its
provisions, as well as the duty to “prescribe in regulations
whether, and to what extent, the amendments made by this
[act] shall apply to a case in which a specification alleges the
commission, before the effective date of such amendments, of
one or more offenses or 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, as
amended by NDAA 2018, § 531(n)(1), 131 Stat. at 1387 (em-
phasis added). The President then 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 § 3(a), 83 Fed. Reg. 9889.
As one of those exceptions, the President ordered that if
an accused is found guilty of committing 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;
....
This opinion constitutes this Court’s decision in this case.
5
United States v. Brubaker-Escobar, No. 20-0345/AR
Opinion of the Court
. . . or
(5) authorizes the convening authority to ap-
prove, disapprove, commute, or suspend a sen-
tence in whole or in part.
Id. § 6(b).
Unlike the new Article 60a,8 the old version of Article 60,
states that “[a]ction on the sentence of a court-martial shall
be taken by the convening authority.” Article 60(c)(2)(A),
UCMJ (emphasis added). Therefore, in any case where an ac-
cused is found guilty of at least one specification where the
offense was committed before January 1, 2019, 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, despite the fact
that Appellant committed the offenses in 2018, the convening
authority failed to take one of the required actions under the
old Article 60. He instead took “no action.” Therefore, the con-
vening 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, 83 Fed.
Reg. 9889. In the instant case, the charges were referred after
January 1, 2019. Therefore, the new version of Article 66,
UCMJ, applies here.
The new version of Article 66 automatically provides the
CCAs with jurisdiction when the military judge enters a
judgment into the record that includes a sentence of a bad-
conduct discharge. Article 66(b)(3), UCMJ. Here, the military
judge sentenced Appellant to a bad-conduct discharge, and
under the old Article 60(c)(4)(A), UCMJ, the convening
8 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.)
6
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Opinion of the Court
authority could not disturb this portion of the sentence.9
Consequently, the convening authority’s error in taking “no
action” had no effect on the bad-conduct discharge sentence.
Therefore, once the military judge entered into the record a
judgment including a bad-conduct discharge, the Army CCA
obtained jurisdiction in this case. Article 66(b)(3), UCMJ.10
Therefore, the convening authority’s erroneous failure to take
action on the sentence did not deprive the CCA of jurisdiction
over this case.11
Because the convening authority’s error was not jurisdic-
tional, it instead is 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).
Despite the convening authority’s error by taking no ac-
tion, Appellant is not entitled to relief for the following rea-
9 Under Rule for Courts-Martial (R.C.M.) 1109(c)(1), the con-
vening authority could not disapprove the bad-conduct discharge
because a convening authority can “[m]odify a bad-conduct dis-
charge . . . 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 ex-
ception is applicable in this case.
10 As R.C.M. 1111(a)(2) details, “[t]he entry of judgment termi-
nates the trial proceedings and initiates the appellate process.”
11 In the past, this Court has indicated that a convening author-
ity’s failure to take action is a jurisdictional error depriving the
CCA of jurisdiction. See Politte, 63 M.J. at 25 (“[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 puni-
tive discharge or confinement for one year or more.”) However, the
Court’s opinion in Politte was based on the language of the prior
version of Article 66(c), UCMJ. Because of the manner in which the
language of Article 66, UCMJ, has changed, the convening author-
ity’s error is now procedural in nature and did not deprive the CCA
of jurisdiction.
7
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Opinion of the Court
sons. First, Appellant did not seek clemency from the conven-
ing authority. Second, under the old Article 60, the convening
authority lacked the power to grant clemency with respect to
the punitive discharge. See Article 60(c)(4)(A), UCMJ. Third,
although the convening authority in theory could have
granted clemency with respect to the rank reduction, that re-
lief would have been meaningless because Appellant’s puni-
tive discharge would have resulted in an automatic reduction
to E-1. See Article 58a, UCMJ (2016); Dep’t of the Army, Reg.
600-8-19, Personnel-General, Enlisted Promotions and Re-
ductions para. 10-3 (April 25, 2017). Thus, the convening au-
thority’s error was harmless.12
IV. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
12 Two judges would hold that Appellant is entitled to no relief
because he forfeited this issue by failing to raise it in a timely man-
ner under R.C.M. 1104(b)(2)(B), and because he is unable to demon-
strate on appeal that the convening authority’s error was clear or
obvious. However, these two judges decline to write separately be-
cause neither party asked for reconsideration of this issue.
8