United States v. Nerad , 69 M.J. 138 ( 2010 )

UNITED STATES, Appellant
v.
Michael T. NERAD, Senior Airman
U.S. Air Force, Appellee
No. 09-5006
Crim. App. No. 36994
United States Court of Appeals for the Armed Forces
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, Esq. (on brief).
For Appellee: Dwight H. Sullivan, Esq. (argued); Captain
Jennifer J. Raab and Captain Tiffany M. Wagner (on brief); Major
Shannon A. Bennett.
Amicus Curiae for Appellant: Colonel Norman F. J. Allen, Major
Sara M. Root, Captain Sasha N. Rutizer, and Captain Sarah J.
Rykowski (on brief) -- for the Army Appellate Government
Division.
Amicus Curiae for Appellee: Michelle M. Lindo McCluer, Esq.,
Jonathan E. Tracy, Esq., Eugene R. Fidell, Esq., and Stephen A.
Saltzburg, Esq. (on brief) -- for the National Institute of
Military Justice.
Military Judge: Gary M. Jackson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nerad, No. 09-5006/AF
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 (UCMJ), 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-1. The convening authority approved
the findings and sentence.
The United States Air Force Court of Criminal Appeals (CCA)
reviewed the case pursuant to Article 66(c), UCMJ, 10 U.S.C. §
866(c) (2006). United States v. Nerad, 67 M.J. 748, 749 (A.F.
Ct. Crim. App. 2009). Despite concluding that there was no
legal or factual error in the case, it nonetheless set aside and
dismissed the finding of guilty to the child pornography offense
based on the “unique circumstances” of the case. Id. 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:
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WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
IN NULLIFYING APPELLEE’S FACTUALLY AND LEGALLY
SUFFICIENT CONVICTION FOR POSSESSION OF CHILD
PORNOGRAPHY.
We hold that while CCAs have broad authority under Article
66(c), UCMJ, to disapprove a finding, that authority is not
unfettered. It must be exercised in the context of legal -- not
equitable -- standards, subject to appellate review. United
States v. Quiroz, 55 M.J. 334, 339 (C.A.A.F. 2001). Relatedly,
while Article 66(c), UCMJ, affords a CCA broad powers, when
faced with a constitutional statute a CCA “cannot, for example,
override Congress’ policy decision, articulated in a statute, as
to what behavior should be prohibited.” United States v.
Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001).
Here, it is unclear from the CCA’s opinion whether it
exceeded its authority by disapproving a finding with reference
to something other than a legal standard, potentially infringing
on the sole prerogative of the convening authority under Article
60, UCMJ, 10 U.S.C. § 860 (2006), to disapprove a finding based
on purely equitable grounds. It is also unclear from the CCA’s
opinion whether the CCA abused its discretion by refusing to
affirm a finding because it thought it “unreasonable” to
criminalize such conduct “under the circumstances,” even though
the circumstances fell squarely within the definition of child
pornography crafted by Congress and referenced by the CCA. 18
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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.
I.
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.
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)(1), UCMJ
(providing that the convening authority may exercise “sole
4
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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 Eighth Amendment
challenge to the conditions of his post-trial confinement, a
request that the lower court rejected. Nerad, 67 M.J. at 749-
50.
On an issue raised sua sponte, however, the CCA determined
that it had the power to set aside the child pornography finding
even though it could “find no legal error and the appellant
never raised an issue at trial, pleading guilty to that
offense.” Id. at 751. As justification for this action the CCA
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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 [of herself]
and sent to him.” Id. 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.” Id.
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. Id. at 752-53.
II.
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)
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finds correct in fact;1 and (3) determines, on the basis of the
entire record, should be approved. United States v. Tardif, 57
M.J. 219, 224 (C.A.A.F. 2002).2 At issue in this case is the
scope and meaning of the “should be approved” language. The
scope and meaning of Article 66(c), UCMJ, is a matter of
statutory interpretation, a question of law reviewed de novo.
United States v. Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F.
2008).
The parties agree, consistent with our precedent, that a
CCA may approve only that part of a sentence that it finds
1
The phrase “correct in law and fact,” Article 66(c), UCMJ, is
used throughout our cases as synonymous with legal and factual
sufficiency. See, e.g., 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(c), UCMJ, concluding
that “[a] 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 sufficiency requires courts to review the
evidence in the light most favorable to the Government. If any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt, the evidence is 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 is 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.
2
“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.” Article 66(c), UCMJ.
7
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“should be approved.”3 See, e.g., 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 [of 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”
3
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(c), UCMJ, 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 finding that
remained. Id. at 570, 573-74. 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.” Id. at 579. Jackson did not, however, limit
boards of review to acting in instances where a sentence was not
“correct.” Instead, it reiterated a broader 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.” Id. In any event, the dissent’s interpretation
of Jackson, United States v. Nerad, __ M.J. __ (8-10) (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).
8
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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. Consistent with our case law, we adopt
neither position. See Quiroz, 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 M.J. 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), UCMJ, 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
9
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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
with respect to a CCA’s action on findings. “[F]indings” 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 F.3d 616, 630 (3d Cir.
1994) (“[U]se 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
10
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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, __ M.J. at __ (12-15) (Stucky, J.,
dissenting), rely on language in United States v. Waymire, 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 discretion when it comes to approving legally and factually
sufficient findings. The Waymire 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.” Id. at 254, 26 C.M.R.
at 34. 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
11
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were incorrect in law and fact.” Id. 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 forgery conviction solely on
the basis of ‘substantial justice,’ [the board of review]
exceeded the scope of its authorized statutory functions.” Id.
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 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.4
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.5 Indeed, one month after Waymire, this
4
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.,
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Court decided Drexler with language suggesting that intermediate
courts had such a power:
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 also
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).
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, __ M.J. at __ (12-15) (Stucky, J.,
dissenting). Perhaps recognizing this, the Government did not
even raise Waymire until its reply brief to this Court.
6
Drexler involved the disapproval of charges that were
multiplicious. Id. 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. Drexler 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.
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Today’s decision does not overrule Waymire: Waymire’s
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. Waymire
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
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M.J. at 162 (indicating that Article 66(c), UCMJ, confers to
CCAs “carte blanche to do justice”); see also United 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 . . . [that the Boards of Review maintain] the power
to treat an accused with less rigor than their authority
permits”) (citation and quotation marks omitted). For “[i]n
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 -- “[i]n words that have often been
cited” -- characterized a CCA’s Article 66(c), UCMJ, 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. . . . [and] for that
of the court members.”7 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
7
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).
15
United States v. Nerad, No. 09-5006/AF
CCAs under Article 66, UCMJ. This different 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), UCMJ:
(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 in part.
(3) Action on the findings of a court-martial by the
convening authority . . . is not required. However,
such person, in his sole discretion, may --
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(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), UCMJ, is not as bold. We assume Congress used
different language for a reason. E.g., 2A Norman J. Singer & J.
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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 only 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 1. But
see Nerad, __ M.J. at __ (4-5) (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.8 See New Process Steel, L.P. v. 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
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,
e.g., Quiroz, 55 M.J. 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 is illegal or
because it is inappropriate.’” 353 U.S. at 577 n.8 (quoting S.
Rep. No. 81-486, at 28 (1949), reprinted in 1950 U.S.C.C.A.N.
2222, 2254) (emphasis added).
18
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(2001) (declining to adopt a “construction of the statute,
[that] would render [a term] insignificant”)).9
Our 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 v.
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 (holding
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 look to in determining whether sentence reassessment
was warranted); Christopher, 13 C.M.A. at 236, 32 C.M.R. at 236
(noting Article 66(c), UCMJ, does not authorize the lower
courts, while reviewing a sentence, to take an action that is
“arbitrary, capricious”). Article 66(c), UCMJ, empowers the
CCAs to “do justice,” with reference to some legal standard, but
does not grant the CCAs the ability to “grant mercy.” United
9
Contrary to the dissent’s assertion that our interpretation of
Article 66(c), UCMJ, “discover[s] a hitherto unknown power,”
Nerad, __ M.J. at __ (1) (Stucky, J., dissenting), the present
opinion reflects the established analysis of the statute offered
by the Court in our prior decisions. See supra 7-10; Tardif, 57
M.J. 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).
19
United States v. Nerad, No. 09-5006/AF
States v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998) (citation and
quotation marks omitted). Granting mercy for any reason or no
reason is within the purview of the convening authority. Id.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), UCMJ,
permits a CCA to examine the record in a particular case and
dismiss a finding because an accused’s criminality was
unreasonably exaggerated by the same acts beings charged
multiple ways, Quiroz, 55 M.J. at 338-39, we have never
suggested that Article 66(c), UCMJ, 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.10 Nor could we. Oakland Cannabis
10
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 Manual for Courts-
Martial, United States. See United States v. Contreras, __ M.J.
__ (3 n.2) (C.A.A.F. 2010) (“The President’s analysis of the
punitive articles is persuasive, but not binding, authority. . .
. Moreover, where the President’s narrowing construction is
favorable to an accused and is not inconsistent with the
language of a statute, we will not disturb the President’s
narrowing construction, which is an appropriate Executive branch
limitation on the conduct subject to prosecution.” (citing
United States v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008); United
States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998))) (alterations
20
United States v. Nerad, No. 09-5006/AF
Buyers’ Coop., 532 U.S. at 490-91, 498-99 (rejecting the
suggestion that even a court acting in equity could effectively
decriminalize actions clearly barred under the Controlled
Substances Act by crafting a medical-necessity exception to the
Act’s prohibitions against marijuana).
D.
As demonstrated above, the broad language with which we
have described 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 or sentence as a
matter of law, those decisions arose in the context of trial and
post-trial errors in which doctrines applicable to issues of law
–- such as waiver -- would have precluded CCA action in the
absence of the “should be approved” language of Article 66(c),
UCMJ.11 See Quiroz, 55 M.J. at 338 (stating that the lower
and quotation marks omitted); see also United States v. Jones,
68 M.J. 465, 471-72 (C.A.A.F. 2010).
11
It is not accurate to equate -- as the dissent implicitly
does, Nerad, __ M.J. at __ (5, 14) (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), UCMJ; see supra note 1. A
disparate sentence or a multiplicious finding can be correct in
law and fact but nonetheless “inappropriate” or “unreasonable.”
See, e.g., Quiroz, 55 M.J. at 339; United States v. Olinger, 12
M.J. 458, 460 (C.M.A. 1982); Drexler, 9 C.M.A. at 408-09, 26
C.M.R. at 188-89.
21
United States v. Nerad, No. 09-5006/AF
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 waiver or
forfeiture”); Wheelus, 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 M.J. at 164 (approving a
decision 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
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
22
United States v. Nerad, No. 09-5006/AF
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.
III.
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.
Our precedent is to the contrary. In United States v.
Leak, 61 M.J. 234 (C.A.A.F. 2005), we observed that this Court,
since the early days of the UCMJ, has reviewed lower court
decisions under Article 67(a)(2), UCMJ, for compliance with the
law, and we have not confined corrective action to those cases
found by the lower court to be “incorrect in law.” See id. at
239-42; see also Quiroz, 55 M.J. at 338-39 (rejecting a factor
the CCA used in conducting the unreasonable multiplication of
charges analysis and remanding for the CCA to apply the correct
factor); United States v. Thompson, 2 C.M.A. 460, 464, 9 C.M.R.
90, 94 (1953) (reversing a CCA’s factual sufficiency
23
United States v. Nerad, No. 09-5006/AF
determination because it misapprehended the legal elements of
the offense, and remanding for the CCA to conduct a new factual
sufficiency review using the appropriate elements). Rather, the
power to review a case under Article 67(a)(2), UCMJ, includes
the power to order remedial proceedings, such as a remand, to
ensure that the lower court reviews the findings and sentence
approved by the convening authority in a manner consistent with
a “correct view of the law.” See Leak, 61 M.J. at 242 (citation
and quotation marks omitted).
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 in law and
fact –- or other legal rationale with respect to the charge, the
specification, the finding, the trial, or the post-trial process
that warranted exercise of its unique power under Article 66(c),
UCMJ.12 Nor did the CCA identify tangible factors, either by
reference to other charges in the case or by reference to other
12
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) (“A finding or sentence
of court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.”). Contra Nerad, __ M.J.
at __ (1-2, 14, 17) (Stucky, J., dissenting).
24
United States v. Nerad, No. 09-5006/AF
cases, that led it to conclude that the finding “unreasonably
exaggerate[d] the criminality 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.
It is possible that the CCA believed 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 believed 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), UCMJ; 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,
25
United States v. Nerad, No. 09-5006/AF
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. § 2256(1)) based on its own judgment regarding the wisdom
of applying the statute to cases where “the appellant was in the
unique position of having a relationship with someone he could
legally see naked and, but for his existing marriage, legally
have sex with, but could not legally possess nude pictures of
her that she took and sent to him.” 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), UCMJ, review consistent with this decision.
IV.
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for remand to the
26
United States v. Nerad, No. 09-5006/AF
United States Air Force Court of Criminal Appeals for a new
review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006).
27
United States v. Nerad, No. 09-5006/AF
BAKER, Judge (concurring in the result):
In my view, the majority seeks to decide too much and rebut
too much at this stage in the proceedings. As a result, I write
separately to concur in the result.
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
UCMJ 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 lie between
the various opinions. At that point, this Court will be able to
more squarely address the Article 66, UCMJ, issues at hand.
United States v. Nerad, No. 09-5006/AF
STUCKY, Judge (dissenting):
Equity 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 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:
’Tis the same thing in the Chancellor’s Conscience.
John Selden, Table-Talk: Being the Discourses of John Selden,
Esq. 43-44 (Israel Gollancz 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), UCMJ, 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 Article 66(c), concocting
a novel understanding of the term “correct in law,” and despite
protestations to the contrary, creating a standard so vague that
it amounts to no standard at all, simply equity -- the measure
of the Chancellor’s foot. Ultimately, the majority’s approach
eviscerates the requirement that “[a] finding or sentence of a
court-martial may not be held incorrect on the ground of an
United States v. Nerad, No. 09-5006/AF
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).
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.
I.
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
2
United States v. Nerad, No. 09-5006/AF
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.” Id. at 749. As
Appellee could lawfully see his paramour naked and, but for his
existing marriage, have sex with her, the CCA concluded that:
the [appellee’s] possession of the photos under these
circumstances is not the sort of conduct which
warrants criminal prosecution . . . and that this
conviction unreasonably exaggerates the criminality of
his conduct. The question is whether we can set aside
the conviction on that basis alone, even though we
find no legal error and the appellant never raised an
issue at trial, pleading guilty to that offense. The
government . . . unconvincingly argues that neither
the plain language of the statute, its legislative
history, nor case precedent indicates the Court can
set aside a finding of guilty that is found correct in
law and fact. We disagree on all points.
Id. (emphasis added).1
II.
This Court holds that the CCAs have broad authority to
disapprove a finding that is correct in law and fact but that
1
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 receive the benefit of a pretrial agreement and yet
3
United States v. Nerad, No. 09-5006/AF
authority is not unfettered. United States v. Nerad, __ M.J.
__, __ (3) (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.” Id. at __ (22). It remands to the court below
apparently to identify an
error -- even error that would not preclude a
determination that the finding was correct in law and
fact –- or other legal rationale with respect to the
charge, the specification, the finding, the trial, or
the post-trial process that warranted exercise of its
unique power under Article 66(c), 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 exaggerate[d] the criminality 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.
Id. at __ (24-25) (brackets in original) (footnote omitted).
III.
Although it is unclear to what extent it affects the
ultimate decision in this case, the majority redefines the term
correct in law to mean legally sufficient. Nerad, __ M.J. at __
(7) n.1 (citing United States v. Beatty, 64 M.J. 456, 458
(C.A.A.F. 2007); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000)). This is a novel theory for which there is no support,
even in the cases the majority cites.
prevail on appeal when the conviction is correct in law and fact
is astonishing.
4
United States v. Nerad, No. 09-5006/AF
Legal sufficiency concerns the state of the evidence
against the accused -- whether it is sufficient to justify the
determination of the trier of fact that the accused is guilty
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Reed, 54 M.J. at 41. The term “correct in law”
is broader in scope and “pertains to errors of law.” United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). Legal
insufficiency is an error of law and is thus subsumed in the
term “correct in law.” In Beatty and Reed, this Court was
dealing with the specific question of whether the evidence was
legally sufficient, not the broader question of whether the
conviction was correct in law. Beatty, 64 M.J. at 457; Reed, 54
M.J. at 38.
IV.
The CCA’s action, and the certified issue, require us to
interpret Article 66, UCMJ. Questions of statutory construction
are questions of law that we review de novo. United States v.
Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008).
Our duty in interpreting a statute is to implement the will
of Congress, “so far as the meaning of the words fairly
permit[ ].” Sec. & Exch. Comm’n v. Joiner, 320 U.S. 344, 351
(1943). In doing so, where possible, we should “avoid rendering
superfluous any parts thereof.” Astoria Fed. Sav. & Loan Ass’n
v. Solimino, 501 U.S. 104, 112 (1991).
5
United States v. Nerad, No. 09-5006/AF
As in all statutory construction cases, we begin
with the language of the statute. The first step is
to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular
dispute in the case. The inquiry ceases if the
statutory language is unambiguous and the statutory
scheme is coherent and consistent.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quotation
marks and citations omitted). Whether the statutory language is
ambiguous is determined “by reference to the language itself,
the specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997).
V.
The scope of the CCAs’ authority is contained in Article
66(c), UCMJ, which provides that:
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.
To analyze the statute, the majority breaks it down into
its constituent parts: The CCA may affirm only such findings
and sentence as it (1) finds correct in law; (2) finds correct
in fact; and (3) “determines, on the basis of the entire record,
should be approved.” Nerad, __ M.J. at __ (6-7). As the
6
United States v. Nerad, No. 09-5006/AF
majority notes, the three constituent parts of Article 66(c)
“are grammatically coupled” such that the “should be approved”
language must apply to both findings and sentence. Id. at __
(10). The question, therefore, is what does “should be
approved” mean and how should it apply within the context of the
whole statute?
The majority examines what it believes to be the correct
application of Article 66(c)’s third constituent part to
sentencing and applies the same logic to findings. It contends
that the phrase “determines . . . should be approved” gives the
CCAs discretion to alter a sentence that is correct in law and
fact. Id. at __ (9, 18-19). By applying the same logic to
findings, the majority determines that the CCAs also have
discretion to disapprove a finding that is correct in law and
fact. See id. at __ (10-13).
Just as I disagree with the majority’s analysis of the
CCAs’ powers to reduce sentences, I oppose its conclusions as to
the CCAs’ powers to disapprove findings. I conclude that the
“should be approved” language is not an independent grant of
power, but merely a mechanism by which Congress granted
authority to the CCAs to correct errors of fact or law, based on
the entire record, without having to remand for a rehearing.
7
United States v. Nerad, No. 09-5006/AF
VI.
The CCA’s power to review a sentence for appropriateness is
a function of its duty under Article 66(c) to affirm only so
much of the sentence as it finds correct in fact. See Jackson
v. Taylor, 353 U.S. 569, 576-77 (1957). It does not derive from
the “should be approved” language of the statute. But see
United States v. Lacy, 50 M.J. 286, 287-88 (C.A.A.F. 1999).
A.
In Jackson, the Army Board of Review set aside the
petitioner’s conviction for murder, affirmed his conviction for
attempted rape, and reduced the sentence from mandatory
confinement for life to the maximum for attempted rape --
confinement for twenty years. 353 U.S. at 570. In a habeas
petition, id. at 572, Jackson asserted that Article 66(c) was
ambiguous and that he should have received the benefit of that
ambiguity: The Board of Review should have ordered a sentence
rehearing rather than merely reassessing the sentence. Id. at
576. The Supreme Court found “no authority in the Uniform Code
for such a procedure.”2 Id. at 579. It concluded that
2
As the Supreme Court noted in Jackson, Congress never intended
a case to be remanded back to a court-martial for a sentence
rehearing. See Article 66(d), UCMJ (permitting remand when the
CCA “sets aside the findings and sentence” (emphasis added); but
see United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370,
373 (1959) (concluding that it is “entirely unreasonable” to
construe the statutory language in Article 66(d) as authorizing
a rehearing only if the findings and sentence were set aside;
8
United States v. Nerad, No. 09-5006/AF
the words [of the statute] are clear. The board may
“affirm . . . such part or amount of the sentence, as
it finds correct . . . .” That is precisely what the
review board did here. It affirmed such part, 20
years, of the sentence, life imprisonment, as it found
correct in fact and law for the offense of attempted
rape. Were the words themselves unclear, the
teachings from the legislative history of the section
would compel the same result.
Id. at 576 (emphases added).
B.
Because the Supreme Court found the language of Article
66(c) to be clear, there was and is no need to resort to the
legislative history to interpret the statute. Nevertheless,
while the Supreme Court decided Jackson based on the statute’s
clear language, it did not shun the legislative history but
rather embraced it. It determined that the clear language of
the statute was consistent with the legislative history. Id. at
576. It quoted the following portion of the legislative history
as “augment[ing]” its conclusions:
“The Board of Review shall affirm a finding of guilty
of an offense or a lesser included offense . . . if it
determines that the finding conforms to the weight of
the evidence and that there has been no error of law
which materially prejudices the substantial rights of
the accused. . . . The Board may set aside, on the
basis of the record, any part of a sentence, either
because it is illegal or because it is inappropriate.
It is contemplated that this power will be exercised
that it would read the term “and” to mean “or”; and that Jackson
did not intend to limit the power of the appellate courts to
order rehearing on sentence alone); accord United States v.
Sills, 56 M.J. 239, 240 (C.A.A.F. 2002).
9
United States v. Nerad, No. 09-5006/AF
to establish uniformity of sentences throughout the
armed forces.”
Id. at 577 n.8 (emphases added) (quoting S. Rep. No. 81-486, at
28 (1949)); see also H.R. Rep. No. 81-491, at 31-32 (1949)
(containing same language). Thus, Jackson and the legislative
history are congruent: A sentence that is illegal is incorrect
in law and one that is inappropriate is incorrect in fact. If
the sentence is illegal or inappropriate, the CCA should instead
affirm the sentence that should be approved -- a sentence that
is correct in law and fact.
After the Board of Review set aside Jackson’s murder
conviction, his life sentence was incorrect in law -- it
exceeded the maximum punishment permitted for attempted rape,
which was twenty years. After considering the entire record,
the Board of Review determined, as a matter of fact, that
confinement for twenty years was the legal and appropriate
sentence. To read Article 66(c) in the manner the majority does
-- that the CCA’s authority to determine sentence
appropriateness stems from its duty to affirm only that part of
the sentence that should be approved -- renders superfluous the
requirement to find the sentence correct in fact, something we
are discouraged from doing. See Solimino, 501 U.S. at 112.
10
United States v. Nerad, No. 09-5006/AF
VII.
Contrary to the position taken by the Government, I agree
with the majority’s grammatical assessment of Article 66(c):
The words “should be approved” apply to a CCA’s review of both
findings and sentence. Nerad, __ M.J. at __ (10). But I
understand the words to apply in a different manner, one that is
consistent with the rest of the statute, including Article
66(d), UCMJ.
Article 66(d) provides that the CCA may order a rehearing
if it sets aside both the findings and sentence. The “should be
approved” language in Article 66(c) ties the power of the CCA to
determine whether the findings and sentence are correct in law
and fact with Article 66(d)’s limitations on ordering a
rehearing. If only the sentence is incorrect in law or fact,
the CCA may not order a rehearing. See Jackson, 353 U.S. at
579; Article 66(d), UCMJ. The CCA itself must determine what
sentence “should be approved” -- one that is correct in law and
fact. If the CCA sets aside a finding and sentence it may order
a rehearing. Article 66(d), UCMJ. The CCA does not order a
rehearing if it sets aside a finding of guilty but the evidence
nevertheless established the accused’s guilt of a lesser
included offense. Instead, it affirms the finding and sentence
that “should be approved” -- one that is correct in law and
fact.
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In the case now before us, the CCA held that, pursuant to
its authority under Article 66(c) to affirm only those findings
that should be approved, it had authority to overturn Appellee’s
guilty plea to the possession of child pornography “even in the
absence of legal or factual error.” Nerad, 67 M.J. at 751
(citing United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002)). As the findings were concededly correct in law and
fact, and there appears to be no basis in law or fact for
setting aside his guilty plea (indeed, that issue was not even
raised), the CCA was without authority to determine that the
conviction for possession of child pornography should not be
affirmed. This conclusion is consistent with Jackson and our
longstanding precedent, United States v. Waymire, 9 C.M.A. 252,
26 C.M.R. 32 (1958).
VIII.
In Waymire, the Board of Review could not decide whether a
court-martial had jurisdiction over the accused for one of his
offenses. Id. at 254, 26 C.M.R. at 34. In lieu of reaching a
decision on the jurisdiction question and without deciding
whether the conviction was incorrect in law or fact, the Board
of Review dismissed the offense in an act this Court
characterized as akin to a compromise or arbitration. Id. at
253-54, 26 C.M.R. at 33-34. We held that the Board had exceeded
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the scope of its statutory authority and reversed. Id. at 255,
26 C.M.R. at 35.
The majority asserts that, in Waymire, we did not purport
to interpret “what the words ‘should be approved’ entailed in
the context of a board’s action on legally and factually
sufficient findings,” and that “Waymire thus serves as precedent
for the unremarkable proposition that CCAs may not disapprove
findings on equitable grounds or disregard their statutory duty
to determine legal and factual sufficiency.” Nerad, __ M.J. at
__ (12). I disagree.
In Waymire, we did interpret the meaning and scope of the
authority of the Boards of Review under Article 66(c):
The extent of a board of review’s powers over
findings have frequently been the subject of review by
this Court. In United States v Fleming, 3 C.M.A. 461,
13 C.M.R. 17, we said that a board of review “is under
a duty to affirm so much of the findings of guilty as
is not affected by error committed at the trial.”
Unlike a convening authority, who may 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.
United States v Massey, 5 C.M.A. 514, 18 C.M.R. 138.
It was never intended that a board of review be given
the power to disapprove findings in its “discretion.”
Cf. Article 64, of the Uniform Code, supra, 10 U.S.C.
§ 864. Not only does Article 66, supra, require that
a board affirm findings of guilt which it determines
to be correct in law and fact, but also that such
determination be made “on the basis of the entire
record.” In United States v Whitman, 3 C.M.A. 179, 11
C.M.R. 179, we said that it was error for a board of
review to rely upon matter lying outside the record of
trial in setting aside an otherwise valid conviction.
It was held in that case that such action went well
13
United States v. Nerad, No. 09-5006/AF
beyond the statutory limits established by the Code.
Cf. United States v Burns, 2 C.M.A. 400, 9 C.M.R. 30.
In the instant case, there is no question but that the
board of review, in setting aside the forgery
conviction solely on the basis of “substantial
justice,” exceeded the scope of its authorized
statutory functions. United States v Gordon, 2 C.M.A.
632, 10 C.M.R. 130.
9 C.M.A. at 255, 26 C.M.R. at 35 (emphasis added).
This Court did not just opine that the CCAs may only
disapprove findings by reference to legal standards. Nerad, __
M.J. at __ (12). It provided the standard: The CCA must affirm
the conviction unless prejudicial error was committed at trial.
Waymire, 9 C.M.A. at 255, 26 C.M.R. at 35; see also Jackson, 353
U.S. at 577 n.8.
The majority further attempts to trivialize Waymire by
asserting that one month after deciding that case we suggested
that the CCAs had the power to disapprove a finding that is
correct in law and fact. Nerad, __ M.J. at __ (12-13) (citing
United States v. Drexler, 9 C.M.A. 405, 408, 26 C.M.R. 185, 188
(1958)). But that is not what Drexler says or means. As the
majority quotes, “‘an appellate tribunal can dismiss even a
valid finding as part of its action in correcting errors at the
trial.’” Id. at 13 (quoting Drexler, 9 C.M.A. at 408, 26 C.M.R.
at 188) (emphasis added). Although Drexler’s convictions were
valid, in the sense that each was factually and legally
sufficient on its own, the Board of Review did find an error of
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United States v. Nerad, No. 09-5006/AF
law -- one of the charges was multiplicious with another.
Drexler, 9 C.M.A. at 407, 26 C.M.R. at 187. Although at the
time, reconsideration of the sentence was thought to “‘cure any
error resulting from any possible multiplication,’” we
determined that dismissing the duplicating charge was within the
sound discretion of the Board of Review. Id. at 408, 26 C.M.R.
at 188 (quoting United States v. McCormick, 3 C.M.A. 361, 363,
12 C.M.R. 117, 119 (1953)). Rather than contradict Waymire as
the majority contends, Drexler actually supports it. The Board
of Review in Drexler corrected an error of law; it did not act
as a matter of discretion.
Nor is Waymire a mere sport, a unique holding unbuttressed
by other authority. In fact, there was substantial authority
prior to Waymire for the same view of the power of the Boards of
Review. See United States v. Fleming, 3 C.M.A. 461, 465, 13
C.M.R. 17, 21 (1953) (positive duty of Board of Review to affirm
findings not affected by error at trial); United States v.
Whitman, 3 C.M.A. 179, 180, 11 C.M.R. 179, 180 (1953) (Board of
Review exceeds Article 66 power when it set aside findings
because it would “create an injustice” in light of convening
authority action in a related case).3
3
Neither United States v. Claxton, 32 M.J. 159 (C.M.A. 1991),
nor United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), cited
by the CCA as support for its action, can carry the weight
placed on them. Claxton was a waiver case involving sentencing,
15
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IX.
“[T]he doctrine of stare decisis is of fundamental
importance to the rule of law.” Welch v. Texas Dep’t of
Highways and Pub. Transp., 483 U.S. 468, 494 (1987). “Adherence
to precedent promotes stability, predictability, and respect for
judicial authority.” Hilton v. South Carolina Pub. Rys. Comm’n,
502 U.S. 197, 202 (1991). Stare decisis applies with “special
force in the area of statutory interpretation” because “the
legislative power is implicated, and Congress remains free to
alter” a court’s interpretation. Patterson v. McLean Credit
Union, 491 U.S. 164, 172-73 (1989), quoted in Hilton, 502 U.S.
at 202.
For those reasons, we should “not depart from the doctrine
of stare decisis without some compelling justification.”
Hilton, 502 U.S. at 202. The majority has not provided such
compelling justification to jettison Waymire and the cases that
preceded it.
X.
The majority suggests that the CCA’s authority to
disapprove a finding that is correct in law and fact is
“cabined” but provides scant support for the proposition.
Nerad, __ M.J. at __ (21). It hints that the CCA’s decision in
in which the statement about findings was an obiter dictum;
Tardif dealt entirely with sentencing.
16
United States v. Nerad, No. 09-5006/AF
this case might have been acceptable if it had identified some
error -- “even error that would not preclude a determination
that the finding was correct in law and fact.” Nerad, __ M.J.
at __ (24). Such a conclusion guts Article 59(a), UCMJ: “A
finding or sentence of court-martial may not be held incorrect
on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.”
XI.
As the majority opinion announces new law, it is
appropriate to consider how this grant of authority to the CCAs
may operate.
The majority asserts that the CCAs have “broad,” although
not unfettered, authority to disapprove a finding that is
correct in law. Nerad, __ M.J. at __ (3). It insists that “the
statutory phrase ‘should be approved’ does not involve a grant
of unfettered discretion but instead sets forth a legal standard
subject to appellate review.” Id. at __ (19) (citing United
States v. Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002); Lacy, 50
M.J. at 288)).
The majority then asserts that for findings the CCAs’
authority is “cabined.” Id. at 21. If by “cabined,” the
majority is applying the “ordinary” meaning of the word --
confined within a narrow space or limits, see Webster’s Third
New International Dictionary, Unabridged 309 (2002) -- it seems
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United States v. Nerad, No. 09-5006/AF
contrary to the characterization of a CCA’s sentencing power
employed in the cases it cites. In Hutchison, 57 M.J. at 234,
and Lacy, 50 M.J. at 287-88, this Court described a CCA’s
sentencing authority as a “highly discretionary power” that this
court reviews for an abuse of discretion. See also United
States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991) (“A clearer
carte blanche to do justice would be difficult to express.”).
Whether the majority’s legal standard is “cabined” or
highly discretionary, in the end it amounts to no standard at
all. The majority states that it will accept a CCA’s decision
to disapprove findings that are correct in law and fact “unless
in disapproving the findings the CCA clearly acted without
regard to a legal standard or otherwise abused its discretion.”
Nerad, __ M.J. at __ (22). It suggests that it might have
upheld the CCA’s judgment if it had (1) identified some
rationale or error, even a harmless one, or (2) identified some
“tangible factors” leading it to conclude that the finding of
guilty “unreasonably exaggerated the criminality of” Appellee’s
conduct or “caused the charge, albeit lawful,” to constitute “an
abuse of prosecutorial discretion.” Id. at __ (24-25)
(citations and brackets omitted).
In fact, what we have done here is to tacitly grant the
CCAs a power that Congress withheld even from those creatures of
pure equity, the boards for correction of military records: the
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United States v. Nerad, No. 09-5006/AF
power to revise the findings of courts-martial simply because a
particular CCA panel does not like a particular result, or
regards it as “unjust.” See 10 U.S.C. § 1552(f). I can discern
no principled standard by which the CCAs are to implement
today’s decision or we are to review these actions. The CCAs,
limited only by their own sense of judicial restraint -- the
measure of their own feet -- are now free to act as councils of
revision. Thus, despite protestations to the contrary, the
majority’s decision grants equitable power to the CCAs.
The majority’s decision is unsupported by Jackson v. Taylor
and our case law, is not compelled by the language of Article
66, UCMJ, and is a result surely not intended by Congress. As
the CCA found Appellee’s guilty plea to be correct in law and
fact, I believe its decision to set aside the conviction for
possession of child pornography exceeded its statutory authority
and was without effect. I would order the conviction
reinstated.
19