United States v. Muller ( 2020 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jordan R. MULLER, Airman First Class
United States Air Force, Appellant
No. 19-0230
Crim. App. No. 39323
Argued November 5, 2019—Decided February 12, 2020
Military Judge: Andrew Kalavanos
For Appellant: Mark C. Bruegger, Esq. (argued); Major
Yolanda D. Miller (on brief).
For Appellee: Captain Peter F. Kellett (argued); Lieutenant
Colonel Brian C. Mason and Mary Ellen Payne, Esq. (on
brief).
Amicus Curiae in Support of Appellant: Rebecca S. Snyder,
Esq., and Captain Valonne L. Ehrhardt, USMC (on brief)—
for United States Navy-Marine Corps Appellate Defense
Division.
_______________
PER CURIAM. Judge MAGGS filed a separate dissenting
opinion.
A general court-martial composed of a military judge
sitting alone convicted Appellant, pursuant to his pleas, of
use and distribution of cocaine and use of 3, 4
methylenedioxymethamphetamine (commonly known as
ecstasy) in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a (2012). Appellant was
sentenced to reduction to E-1, confinement for nine months,
and a bad-conduct discharge. The convening authority
approved the sentence.
In May 2018, appellate defense counsel submitted Appel-
lant’s case to the United States Air Force Court of Criminal
Appeals (CCA) on the merits without any assignments of er-
ror. On September 12, 2018, the CCA issued an order for the
Government to show good cause why the record should not be
returned for correction pursuant to Rule for Courts-Martial
United States v. Muller, No. 19-0230/AR
Opinion of the Court
(R.C.M.) 1104(d) because Prosecution Exhibit (PE) 7 was ap-
parently missing from the record. The Government responded
in a timely fashion with a motion to attach an enlisted perfor-
mance report (EPR) for Appellant, dated July 9, 2016, and an
accompanying affidavit from the trial counsel who said she
was “extremely confident” the attached EPR was the same PE
7 from trial.
In October 2018, the CCA returned the record to the Judge
Advocate General for correction of the record to account for
the missing exhibit in accordance with R.C.M. 1104(d). On
November 26, 2018, the Government moved to attach a cer-
tificate of correction by the military judge. On November 30,
2018, the CCA granted the Government’s motion to attach out
of time. On December 6, 2018, Appellant filed a motion for
leave to file supplemental assignments of error. Those supple-
mental assignments of error alleged unlawful command influ-
ence and dilatory appellate review. On December 10, 2018,
Appellant also filed a motion to attach his affidavit, alleging
that he suffered prejudice from the dilatory appellate review
because it delayed the issuance of a DD Form 214, resulting
in difficulties gaining employment and submitting a claim
with the Department of Veterans Affairs. The Government
did not file a response to these motions.
On December 21, 2018, the CCA denied Appellant’s mo-
tions without comment or explanation and issued a decision
summarily affirming the findings and sentence of Appellant’s
court-martial. Appellant requested reconsideration, with a
suggestion for reconsideration en banc, based on his belief
that he timely filed his supplemental assignments of errors
and that the CCA erred in failing to consider them. The CCA
denied his reconsideration request.
Although the CCA did not provide any reasoning behind
its denial of Appellant’s motion to file supplemental assign-
ments of error, Appellant contends before this Court that the
CCA found the motion untimely under Rule 15.5 of the United
States Air Force Court of Criminal Appeals Rules of Practice
and Procedure [hereinafter Air Force Rules]. Appellant then ar-
gues that the rule is invalid because it directly conflicts with the
2
United States v. Muller, No. 19-0230/AR
Opinion of the Court
Joint Courts of Criminal Appeals Rules of Practice and Proce-
dure [hereinafter Joint Rules],1 and our precedent in United
States v. Gilley, 59 M.J. 245 (C.A.A.F. 2004). The Government
disagrees.
We granted review to determine whether Air Force Rule
15.5 was invalid because it conflicted with the Joint Rules and
our precedent. We further granted review to determine
whether the CCA deprived Appellant of due process to raise
issues on appeal when it denied his request to file a
supplemental brief, and whether a CCA must require a
certificate of correction to be accomplished—as opposed to
accepting documents via a motion to attach—when it finds a
record of trial incomplete due to a missing record.
At the time that Appellant filed his motion to file supple-
mental assignments of error, Air Force Rule 15.5 provided:
When a case returned by the Court to TJAG for re-
mand to the convening authority for anything other
than a rehearing is again before the Court and ap-
pellate counsel previously filed an initial brief and
assignment(s) of error, appellate defense counsel
shall within 10 calendar days of re-docketing either
request leave to file a supplemental pleading under
Rule 23 or inform this Court that the appellant does
not wish to file additional pleadings.2
At the same time, Joint Rule 15(b) provided that “[a]ny
brief for an accused shall be filed within 60 days after appel-
late counsel has been notified of the receipt of the record in
the Office of the Judge Advocate General.” In addition, Joint
1 On January 1, 2019, the Joint Rules were amended, renum-
bered, and renamed as the Joint Rules of Appellate Procedure for
Courts of Criminal Appeals.
2 Effective August 1, 2019, Air Force Rule 18.4 now provides
simply that “Supplemental filings must be submitted by motion for
leave to file in accordance with [Joint] Rule 23(d). If the motion is
granted, the opposing party may file a response to the supplemental
filing within 30 days.” Only the validity of the former Air Force Rule
15.5 is before this Court.
3
United States v. Muller, No. 19-0230/AR
Opinion of the Court
Rule 26 authorized the Chief Judge of the CCA to prescribe
internal rules for that court.3
In Gilley, this Court confronted a similar conflict between
an Air Force filing rule that varied from the Joint Rules and
held as follows:
The Government avers that [Joint] Rule 26 au-
thorizes the Air Force Court to create its own filing
deadline for cases upon further review, even if that
deadline varies from the uniform guidance of [Joint]
Rule 15(b). We disagree. First, [Joint] Rule 26 au-
thorizes the Courts of Criminal Appeals to create
“internal” court rules. The dictionary defines “inter-
nal” in pertinent part as “existing or situated within
the limits.” Merriam–Webster Unabridged Diction-
ary 1180 (1986). Thus, [Joint] Rule 26 authorizes the
Courts of Criminal Appeals to create rules applying
to entities “existing or situated within [each court’s]
limits.” By contrast, a rule governing filings or
briefs, such as [Air Force] Rule 2.2,4 applies to enti-
ties external to the court, i.e., the parties. Moreover,
an internal rule created under [Joint] Rule 26 logi-
cally cannot conflict with a uniform rule of procedure
already adopted by the Judge Advocates General. In-
deed, a subject deemed appropriate by the Judge Ad-
vocates General for a uniform rule cannot also be an
appropriate subject for a different, internal rule. Be-
cause [Air Force] Rule 2.2 applies to external, not in-
ternal, entities, and because it logically conflicts
with the uniform guidance of [Joint] Rule 15(b), it is
outside the scope of [Joint] Rule 26.
59 M.J. at 247–48 (fifth alteration in original) (footnote
added).
We conclude that Air Force Rule 15.5 is, likewise, invalid,
insofar as it contradicts the Joint Rules. Because the CCA
3 Joint Rules 15(b) and 26 in effect at the time of the Gilley de-
cision are the same as the joint rules under consideration in Appel-
lant’s case.
4 Air Force Rule 2.2. required parties to present any filings re-
garding a remanded case within seven days of receiving notice that
the appellate records branch received the record. See Gilley, 59 M.J.
at 246.
4
United States v. Muller, No. 19-0230/AR
Opinion of the Court
summarily denied Appellant’s motion to file supplemental
assignments of error, we cannot determine whether the
denial was based on the invalid Air Force Rule 15.5, or some
other valid basis.5 Because we remand the case to the CCA,
the due process issue is now moot. Finally, we conclude that
it is unnecessary to determine the certificate of correction
issue.
The judgment of the United States Air Force Court of
Criminal Appeals is reversed. The record of trial is returned
to the Judge Advocate General of the Air Force for remand to
the Court of Criminal Appeals for a new review under Article
66(c), UCMJ, 10 U.S.C. § 866(c) (2012).
5 The dissent acknowledges the parties’ agreement that the mo-
tion to file supplemental assignments of error was timely filed
within the ten-day limit imposed by Air Force Rule 15.5. However,
Appellant also acknowledged—in his brief and at oral argument—
some ambiguity about the dates. Further, the record itself is un-
clear as to when the clock began to run on Rule 15.5’s ten-day limit.
Lastly, as the CCA did not articulate its reasons for denying the
motion, we cannot be certain that court agreed with the parties that
the motion was timely filed.
5
United States v. Muller, No. 19-0230/AF
Judge MAGGS, dissenting.
I respectfully dissent. A remand is not necessary in this
case. I would simply affirm the decision of the U.S. Air Force
Court of Criminal Appeals (AFCCA).
I. AFCCA Rule 15.5
We granted review of three issues. United States v. Muller,
79 M.J. 212 (2019) (order granting petition for review). The
first asks whether Rule 15.5 of the AFCCA’s Rules of Practice
and Procedure [hereinafter AFCCA Rules] is invalid. Id. Ap-
pellant argues AFCCA Rule 15.5 is invalid because the rule’s
ten-day deadline for filing supplemental papers conflicts with
the sixty-day deadline in Rule 15(b) of the Joint Courts of
Criminal Appeals Rules of Practice and Procedure [hereinaf-
ter Joint Rules]. I do not believe that we should decide this
issue because it is now clear that the validity of AFCCA Rule
15.5 does not matter in this case. Whether Appellant should
have had sixty days instead of ten days to file his supple-
mental assignments of error makes no difference because
both parties now agree that Appellant filed his supplemental
assignments of error within eight days of the AFCCA’s grant
of the Government’s motion to attach.1 The validity of AFCCA
Rule 15.5 would be an issue only if Appellant filed after ten
days but before sixty days, because we then would have to
1 Brief for Appellant at 9, United States v. Muller, No. 19-0230
(C.A.A.F. Aug. 28, 2019) (“[O]n December 6, 2018—eight days after
the Air Force Court granted the government’s motion to attach—
A1C Muller moved for leave to file a supplemental assignment of
errors.”); Brief for Government at 11, United States v. Muller, No.
19-0230 (C.A.A.F. Sept. 27, 2019) (“Whether AFCCA followed its
own 10-day rule or the Joint Rule’s 60-day rule, Appellant filed his
motion within the time required under both rules as he contends—
within eight days after AFCCA granted the motion to attach the
certificate of correction, which was when he was notified the record
had been returned to the court.”). At oral argument, Appellant
noted some ambiguity about the dates but insisted “it is our position
that we did meet [the deadline].” Appellant further argued that the
shortened deadline, if enforceable, would prevent filing any further
assignments of error after ten days. But Appellant neither at-
tempted to make any additional filings nor even indicated what he
might have filed.
United States v. Muller, No. 19-0230/AF
Judge MAGGS, dissenting
decide whether AFCCA Rule 15.5 or Joint Rule 15(b) should
control.
II. Due Process
The second issue granted by this Court asks whether the
AFCCA denied due process to Appellant when it denied his
timely request to file a supplemental brief containing two as-
signments of error. Muller, 79 M.J. at 213. As an appellate
court, we can affirm the AFCCA’s judgment based on any
valid ground supported by the record. See Murr v. Wisconsin,
137 S. Ct. 1933, 1949 (2017). In this case, the record shows
that, even if the AFCCA had no proper basis for denying Ap-
pellant’s filing and the denial constituted a violation of due
process, the alleged error by the AFCCA would be harmless
beyond a reasonable doubt.2 See Chapman v. California, 386
U.S. 18, 24 (1967) (requiring appellate courts to review con-
stitutional errors under a “harmless beyond a reasonable
doubt” standard); see United States v. Toohey, 63 M.J. 353,
363 (C.A.A.F. 2006) (finding a violation of due process by the
U.S. Navy-Marine Court of Criminal Appeals in its handling
of an appeal and reviewing the violation under a standard of
harmlessness beyond a reasonable doubt). Accordingly, Ap-
pellant is not entitled to relief from this Court, and I would
affirm the AFCCA on this ground.
The first supplemental assignment of error asked whether
the convening authority unlawfully influenced the proceed-
ing. The facts behind this assignment of error are simply
stated. In an effort to correct the record by including a miss-
ing exhibit, the convening authority ordered the military
judge to “verify that this exhibit is what you reviewed as the
military judge in U.S. v. Miller.” Appellant argued that this
order constituted unlawful influence because the convening
authority was ordering the military judge to rule in favor of
the Government.
2 The Government argues both that Appellant suffered no prej-
udice and that Appellant failed to demonstrate the relevance of the
filing as required by AFCCA Rule 23.3(b). Because I agree with the
Government’s argument with respect to the lack of prejudice, I do
not address the Government’s argument with respect to relevance.
2
United States v. Muller, No. 19-0230/AF
Judge MAGGS, dissenting
This argument had no merit. To be sure, in some contexts
the verb “to verify” may mean “to swear to or affirm the truth
of.” Merriam-Webster’s Third International Dictionary of the
English Language Unabridged (2002) (entry for “verify”). But
in other contexts the verb simply means “to check or test the
accuracy or exactness of.” Id. The context here shows that,
when the convening authority ordered the military judge to
“verify” the exhibit was the correct one, the convening author-
ity was not directing the military judge to make a particular
decision. An exhibit missing from the record needed to be
added, and the convening authority was simply asking the
military judge to confirm whether the transmitted exhibit
was or was not the correct exhibit. Legal texts routinely use
the term “verify” in this sense of checking whether something
is correct. See, e.g., Fisher v. Univ. of Texas, 570 U.S. 297, 312
(2013) (“Narrow tailoring also requires that the reviewing
court verify that it is necessary for a university to use race to
achieve the educational benefits of diversity.” (emphasis
added) (internal quotation marks omitted) (citation omitted)).
Based on the military judge’s response, I am also certain be-
yond a reasonable doubt that the military judge interpreted
the convening authority’s order in this way.
The second supplemental assignment of error asked
whether unreasonable delay in processing a certificate of cor-
rection warranted sentence relief. Appellant argued in his fil-
ing that the Government unnecessarily took twenty-four days
to forward materials in its possession to the military judge.
He further argued that this waste of time prejudiced him by
delaying his job search and his claims before the Department
of Veterans Affairs. In my view, this assignment of error also
plainly lacked merit. As the Government correctly contends,
even if the AFCCA had considered this assignment of error,
the AFCCA would have ruled against Appellant because Ap-
pellant failed to provide documentation from the Department
of Veterans Affairs and from potential employers in support
of his claims made in the declaration, as our precedent re-
quires. See United States v. Allende, 66 M.J. 142, 145
(C.A.A.F. 2008) (requiring evidence that post-trial delay
caused prejudice by delaying employment).
In sum, because neither of the two supplemental assign-
ments of error had merit, Appellant suffered no prejudice
3
United States v. Muller, No. 19-0230/AF
Judge MAGGS, dissenting
from the AFCCA’s decision not to consider them. Even if the
AFCCA erred in its decision not to accept the filing, and even
if this error constituted a violation of due process, the error
was harmless beyond a reasonable doubt.
III. Certificate of Correction
The third issue granted by this Court asks whether a
Court of Criminal Appeals must require certificates of correc-
tion to be accomplished, instead of accepting documents via a
motion to attach, when it finds a record of trial to be incom-
plete due to a missing exhibit. Muller, 79 M.J. at 213. The
Court added this issue based on a request by the Government
in its answer to Appellant’s petition for review.
Appellant argues that resolution of this issue is not neces-
sary to this case. The Government asserts that the answer to
this question is relevant if this Court reverses the AFCCA,
because the answer would affect the AFCCA’s reassessment
of the sentence and the AFCCA’s evaluation of Appellant’s
supplemental assignment of error concerning post-trial delay.
Given the parties’ positions, and because I believe that this
Court should affirm rather than reverse and remand, I see no
need to address this issue.
For these reasons, I respectfully dissent.
4