United States v. Quick , 2015 CAAF LEXIS 703 ( 2015 )

UNITED STATES, Appellant
v.
Christopher A. QUICK, Sergeant
U.S. Marine Corps, Appellee
No. 15-0347
Crim. App. No. 201300341
United States Court of Appeals for the Armed Forces
Argued May 12, 2015
Decided August 11, 2015
ERDMANN, C.J., delivered the opinion of the court, in which
RYAN, J., joined. BAKER, J., filed a separate concurring
opinion. STUCKY, J., filed a separate dissenting opinion, in
which OHLSON, J., joined.
Counsel
For Appellant: Lieutenant James M. Belforti, JAGC, USN
(argued); Colonel Mark K. Jamison, USMC, Captain Matthew M.
Harris, USMC, and Brian K. Keller, Esq. (on brief).
For Appellee: Captain David A. Peters, USMC (argued); Captain
Daniel Douglass, USMC.
Amicus Curiae for Appellant: Gerald R. Bruce, Esq. (on brief)
-- for the United States Air Force Appellate Government
Division; Lieutenant Commander A. M. Lee (on brief) -- for the
United States Coast Guard Appellate Government Division.
Amicus Curiae for Appellee: Brian L. Mizer, Esq. (on brief) --
for the United States Air Force Appellate Defense Division.
Military Judge: Chris Thielemann
This opinion is subject to revision before final publication.
United States v. Quick, No. 15-0347/MC
Chief Judge ERDMANN delivered the opinion of the court.
Contrary to his pleas, Sergeant Christopher A. Quick was
convicted by a panel of officer and enlisted members, sitting as
a general court-martial, of conspiracy to distribute an indecent
visual recording, wrongfully viewing an indecent visual
recording, and indecent conduct, in violation of Articles 81,
120c, and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 881, 920c, 934 (2012). Quick was sentenced to a
bad-conduct discharge, six months of confinement, and a
reduction to E-3. The convening authority approved the sentence
as adjudged. In a published decision, the United States Navy-
Marine Corps Court of Criminal Appeals (NMCCA) set aside Quick’s
conviction for wrongfully viewing an indecent visual recording
and, finding that the penalty landscape had dramatically
changed, ordered a sentencing rehearing. United States v.
Quick, 74 M.J. 517, 519, 524 (N-M. Ct. Crim. App. 2014). As a
result of the remand for a sentence rehearing, the Judge
Advocate General of the Navy has asked this court whether Courts
of Criminal Appeals (CCAs) have the legal authority to order
sentence-only rehearings under Article 66(d), UCMJ, 10 U.S.C.
§ 866(d) (2012). 1 In view of this court’s long-standing
1
The government certified the following issue pursuant to
Article 67(a)(2):
2
United States v. Quick, No. 15-0347/MC
precedent on this issue and the doctrine of stare decisis, we
affirm the decision of the NMCCA.
Discussion
Neither the substantive offenses nor the facts below are at
issue in this appeal. The underlying issue is whether Article
66(d), UCMJ, authorizes the CCAs to order sentence-only
rehearings. The government argues that the CCAs do not have
that authority and asks that we overrule this court’s decision
in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956),
in which we specifically recognized the authority of the CCAs to
order sentence-only rehearings. The government asserts that
Miller was wrongly decided in light of Jackson v. Taylor, 353
U.S. 569 (1957). The government further argues that under the
plain language of Article 66(d), UCMJ, if a CCA orders a
rehearing, it must do so for both the finding(s) which were set
aside and the sentence. It cannot order a sentence-only
Whether precedent authorizing Courts of Criminal
Appeals to order sentence-only rehearings should be
overruled based on: (A) Jackson v. Taylor, 353 U.S.
569 (1957), which stated “no [such] authority” exists;
(B) the plain language of the statute including the
conjunctive “findings and sentence” in Article 66(d)
in contrast to authority granted the Judge Advocates
General in Article 69(a) to act with respect to
“findings or sentence or both” and the convening
authority in Article 60(f)(3) to order sentence
rehearings; and (C) judicial economy.
United States v. Quick, 74 M.J. 223 (C.A.A.F. 2015)
(docketing notice).
3
United States v. Quick, No. 15-0347/MC
rehearing. The government goes on to argue that, if Congress
had intended to grant the CCAs the authority to order sentence-
only rehearings, it would have amended Article 66(d), UCMJ, in
the same manner it amended Article 69, UCMJ, in the Military
Justice Act of 1983, which extended that authority to the Judge
Advocates General. 2
Quick counters that Miller was correctly decided, that the
plain language of Article 66, UCMJ, supports the CCA’s power to
order sentence-only rehearings and that, in any event, this
court should continue to follow Miller under the doctrine of
stare decisis. While Quick also relies on the plain language of
2
The government also argues that Congress extended the authority
to order sentence-only rehearings to convening authorities in
the Military Justice Act of 1983 by amending Article 60, UCMJ.
While that authority was inserted into Article 60(e)(3) in the
1983 amendments, the authority already existed. The Senate
Report that accompanied the Military Justice Act of 1983
explained that the substantive rules governing a convening
authority’s power to order a rehearing were taken from the then
existing version of Article 63(a) which stated, “If the
convening authority disapproves the findings and sentence of a
court-martial he may, except where there is lack of sufficient
evidence in the record to support the findings, order a
rehearing.” S. Rep. NO. 98-53, at 51 (1983). As explained in
the Senate Report, Article 63(a) was “implemented by paragraph
92a of the Manual for Courts-Martial (rev. ed. 1969),” id. at
27, which specifically stated, “In addition to having the power
. . . to order a rehearing in full . . . , the convening
authority or a reviewing authority may order a rehearing on the
sentence only based on the sustained findings
[Article](81b(2)).” Manual for Courts-Martial, United States,
para. 92.a., at 18-1 (1969 rev. ed.) (MCM). Therefore, Congress
considered that the amendments to Article 60(e) in 1983
“continue[d preexisting] authority for the convening authority
to order . . . a rehearing on the sentence only based upon
approved findings.” S. Rep. NO. 98-53, at 21.
4
United States v. Quick, No. 15-0347/MC
Article 66(d), UCMJ, in his statutory construction argument he
primarily relies on 1 U.S.C. § 1, which provides that “[i]n
determining the meaning of any Act of Congress, unless the
context indicates otherwise . . . words importing the plural
include the singular . . . .” Quick argues that since the term
“findings” in Article 66(d) can be read as “finding,” the
statute authorizes rehearings when the CCA sets aside “a finding
and sentence.”
The process for first-level appellate review of court-
martial convictions is encompassed within Article 66, UCMJ.
Subsection (d) of Article 66 addresses the scope of the CCA’s
authority to order rehearings:
If the Court of Criminal Appeals sets aside the
findings and sentence, it may, except where the
setting aside is based on lack of sufficient evidence
in the record to support the findings, order a
rehearing. If it sets aside the findings and sentence
and does not order a rehearing, it shall order that
the charges be dismissed.
Jackson v. Taylor:
In 1957, the Supreme Court decided Jackson, which addressed
the options available to boards of review (now the Courts of
Criminal Appeals) when a sentence has been set aside. 353 U.S.
at 570-71. Jackson and two other soldiers had been convicted at
a general court-martial of premeditated murder and attempted
rape and all three were sentenced to life in prison. Id. The
findings and sentences were approved by the convening authority.
5
United States v. Quick, No. 15-0347/MC
Id. at 571. On appeal, however, the United States Army board of
review set aside the convictions for premeditated murder and
affirmed only the convictions for attempted rape. Id. at 570-
71. The board then modified the sentences and held that “only
so much of the approved sentence as provides for dishonorable
discharge, total forfeitures, and confinement at hard labor for
20 years is correct in law and fact.” Id. at 570. The three
soldiers sought review from this court (at that time the United
States Court of Military Appeals), but did not challenge the
authority of the board of review to modify the sentences. Id.
at 571-72. The petitions were summarily denied. Id. (citing
United States v. Fowler, 2 C.M.R. 336 (A.B.R. 1952)).
The three soldiers were confined in different federal
prisons and each appealed to the appropriate federal district
court through writs of habeas corpus, challenging the board’s
power to modify the sentences. Id. at 572. The district courts
arrived at conflicting decisions as did the respective Circuit
Courts of Appeal. 3 Id. Relying on Article 66(c), the Supreme
Court held that “[t]he board may ‘affirm . . . such part or
3
The United States Court of Appeals for the Seventh Circuit held
that the board of review did not have the power to modify the
sentence while both the United States Courts of Appeals for the
Third and Fifth Circuits held it possessed that authority. See
DeCoster v. Madigan, 223 F.2d 906, 910 (7th Cir. 1955),
overruled by 353 U.S. at 569; Jackson v. Taylor, 234 F.2d 611,
614 (3d Cir. 1956), aff’d, 353 U.S. at 569; Wilkinson v. Fowler,
234 F.2d 615 (5th Cir. 1956), aff’d, 353 U.S. at 569.
6
United States v. Quick, No. 15-0347/MC
amount of the sentence, as it finds correct . . . .’ That is
precisely what the review board did here.” Id. at 576
(alterations in original) (citation omitted). Having determined
that the board of review had the authority to alter the
sentence, the Supreme Court turned to Jackson’s argument that
the board was required to return the case to the convening
authority for a sentence rehearing. Although it did not
specifically reference Article 66(d), UCMJ, the Supreme Court
summarily dispensed with this argument:
We find no authority in the Uniform Code for such a
procedure and the petitioner points to none. The
reason is, of course, that the Congress intended that
the board of review should exercise this power. This
is true because the nature of a court-martial
proceeding makes it impractical and unfeasible to
remand for the purpose of sentencing alone. See
United States v. Keith, 1 U.S.C.M.A. 442, 451, 4
C.M.R. 34, 43 (1952).
Jackson, 353 U.S. at 579 (footnote omitted).
United States v. Miller:
In 1959 this court decided Miller, which considered whether
the boards of review had the legal authority to order sentence-
only rehearings. 10 C.M.A. at 298, 27 C.M.R. at 372. The board
of review in Miller set aside a finding and ordered a sentence-
only rehearing. Id. at 297, 27 C.M.R. at 371. The Judge
Advocate General of the Army then asked this court whether the
board of review had exceeded its authority in light of the
Supreme Court’s holding in Jackson. Id.
7
United States v. Quick, No. 15-0347/MC
The Miller court reviewed its precedent as to the authority
of boards of review to order rehearings and noted that it had,
without exception, upheld the power of the boards to order
sentence-only rehearings. 4 Id. at 299, 27 C.M.R. at 373. The
court addressed the Jackson decision, id. at 298, 27 C.M.R. at
372, and noting that the Supreme Court had “purported to rely on
the holdings of this Court,” 5 found that:
[w]hile it is true we have generally returned cases to
boards of review because sending them to the trial
level is rather cumbersome in that a new court must be
assembled and informed on the facts, there are some
cases in which the latter disposition is preferable
and, as indicated, our decisions approving this
limited form of relief are found in the reported
cases. Accordingly, we are led to believe that in
Jackson v Taylor, supra, the Supreme Court was merely
pointing out some of the difficulties which prompted
Congress to authorize reassessment of the sentence by
a board of review and that it was not intending to say
the power to order the limited rehearing was not
impliedly granted by Articles 66 and 67 of the Code.
Accordingly, we reaffirm our previous holdings that a
case may be returned to a court-martial for rehearing
on sentence only.
Id. at 299, 27 C.M.R. at 373.
As recognized by both parties, when this court considers a
request to overrule a prior decision of the court, we analyze
the matter under the doctrine of stare decisis. The doctrine of
4
Between the effective date of the UCMJ and the Jackson
decision, this court had recognized or affirmed the power of the
boards of review to order sentence-only rehearings in at least
four cases, but did not discuss the language of Article 66(d).
See Appendix.
5
The Supreme Court in Jackson cited United States v. Keith,
1 C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). 353 U.S. at 579.
8
United States v. Quick, No. 15-0347/MC
stare decisis is “most compelling where courts undertake
statutory construction.” United States v. Rorie, 58 M.J. 399,
406 (C.A.A.F. 2003).
When considering whether to overrule a precedent, we
are guided by the doctrine of stare decisis. Under
this fundamental principle, adherence to precedent “is
the preferred course because it promotes the
evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v.
Tennessee, 501 U.S. 808, 827 (1991).
Stare decisis is a principle of decision making, not a
rule, and need not be applied when the precedent at
issue is “unworkable or . . . badly reasoned.” Id.
As a general matter, however, “adhering to precedent
‘is usually the wise policy, because in most matters
it is more important that the applicable rule of law
be settled than it be settled right.’” Id. (quoting
Burnet v. Colorado Oil & Gas Co., 285 U.S. 393, 406
(1932) (Brandeis, J., dissenting).
United States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000).
Under the doctrine of stare decisis a decision should
not be overruled without examining intervening events,
reasonable expectations of servicemembers, and the
risk of undermining public confidence in the law.
Florida Department of Health and Rehabilitative
Services v. Florida Nursing Home Ass’n, 450 U.S. 147,
151-55 (1981) (Stevens, J., concurring).
United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995).
For purposes of our analysis under the doctrine of stare
decisis, therefore, we do not limit our review to whether Miller
was wrongly decided, but rather we examine: whether the prior
9
United States v. Quick, No. 15-0347/MC
decision is unworkable or poorly reasoned; 6 any intervening
events; the reasonable expectations of servicemembers; and the
risk of undermining public confidence in the law.
Workability and Reasoning:
As noted in Miller, sending a case to CCAs for a sentence-
only rehearing is somewhat cumbersome, as a new court must be
assembled and informed of the facts. 10 C.M.A. at 299, 27
C.M.R. at 373. However, a process that is cumbersome does not
equate to a process that is unworkable. The very fact that the
CCAs have been ordering sentence-only rehearings for over sixty
years demonstrates the workability of the process. That
workability is further illustrated by paragraph 92.a. of the
1969 MCM which authorized a convening authority to order a
sentence-only rehearing and the 1983 statutory expansion of the
authority to order sentence-only rehearings to the Judge
Advocates General -- changes made with the participation and
support of the government. 7 We do not believe that the executive
6
Cf. Johnson v. United States, 192 L. Ed. 2d 569, 584 (2015)
(“The doctrine of stare decisis allows us to revisit an earlier
decision where experience with its application reveals that it
is unworkable.”).
7
Department of Defense General Counsel William H. Taft IV
provided testimony to both the Senate and House hearings in
support of the Military Justice Act of 1983 and noted that the
Courts of Military Review (now the CCAs) already possessed the
authority to order sentence rehearings. See S. Rep. No. 98-53,
at 1; Hearing on S. 974 before the Military Personnel and
Compensation Subcomm. of the Comm. on Armed Services, 98th Cong.
38 (1983) (statement of Hon. William H. Taft, General Counsel of
the Department of Defense). Both the Senate and House Committee
10
United States v. Quick, No. 15-0347/MC
branch would itself adopt, and also request Congress to adopt,
an unworkable procedure. Indeed, the jurisprudence that has
developed since Miller has established guidelines as to when it
is appropriate for a CCA to remand a case for a sentence
rehearing and when it is appropriate for a CCA to reassess the
sentence at the appellate level. 8 Consequently, there is nothing
that has been submitted to this court which demonstrates that
the Miller process is unworkable.
As to whether the Miller decision was poorly reasoned, both
parties have presented valid arguments supporting their
respective positions. However, we note that the Miller court
directly addressed the Jackson decision and provided an
explanation for its interpretation of that decision. We do not
believe that Miller was so poorly reasoned that it should be
reversed on that basis alone, particularly when it has been
accepted by and relied upon by both the legislative and
executive branches of government in the intervening years.
Reports on S. 974 recognized that the Courts of Military Review
possessed the authority to order sentence rehearings at that
time. See S. Rep. No. 98-53, at 29; H.R. Rep. No. 98-549, at
16.
8
See, e.g., United States v. Winckelmann, 73 M.J. 11, 14-16
(C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 43-44
(C.A.A.F. 2006) (Baker, J., concurring in the result); United
States v. Buber, 62 M.J. 476, 480 (C.A.A.F. 2006); United States
v. Doss, 57 M.J. 182, 184-86 (C.A.A.F. 2002); United States v.
Sales, 22 M.J. 305, 307 (C.M.A. 1986).
11
United States v. Quick, No. 15-0347/MC
Intervening Events:
As noted, in the Military Justice Act of 1983, Congress
amended Article 69, UCMJ, to grant authority to the Judge
Advocates General to order sentence-only rehearings. Congress
did not take that opportunity to amend Article 66(d) to grant
similar authority to the CCAs. 9 The government, while
recognizing that legislative inaction does not necessarily
reflect legislative intent, goes on to assert that Congress’s
“refusal” to grant the CCAs the same statutory authority could
be seen as evidence of congressional intent not to grant the
CCAs the same power. They further suggest that such a failure
by the legislature could constitute an intervening event for
purposes of a stare decisis analysis.
The legislative history of the 1983 amendments, however,
does not support such a conclusion. The amendments were
endorsed by the Department of Defense and the Department’s
testimony recognized that the Courts of Military Review already
possessed that authority. Moreover, as noted above, the
language supporting the government’s position that the CCAs had
9
While Article 66, UCMJ, has been amended numerous times since
its passage, Article 66(d), UCMJ, has only been amended twice,
both times to change the name of the intermediate military
court. See National Defense Authorization Act for Fiscal Year
1995, Pub. L. No. 103–337, 108 Stat. 2663; Military Justice Act
of 1968, Pub. L. No. 90-632, 82 Stat. 1335.
12
United States v. Quick, No. 15-0347/MC
this power was largely adopted by Congress. 10 In view of the
government’s position and congressional recognition that the
CCAs possessed that authority at the time, there would be no
reason for Congress to take legislative action. The Military
Justice Act of 1983 does not constitute an intervening event for
purposes of stare decisis.
Reasonable Expectations of Servicemembers:
While it is difficult to quantify the expectations of
servicemembers in regard to the authority of the CCAs to order
sentence-only rehearings, in the over sixty years of this
court’s consistent interpretation, Miller has become an
established component of the military justice system. See
Appendix (non-exhaustive list of cases explicitly or implicitly
affirming sentence-only rehearings). In the almost seventy
cases identified by this court, at least nine have discussed the
CCA’s power to varying degrees. 11
10
See supra note 7.
11
See United States v. French, 10 C.M.A. 171, 185, 27 C.M.R.
245, 259 (1959); United States v. Christopher, 13 C.M.A. 231,
234, 32 C.M.R. 231, 234 (1962); Sales, 22 M.J. at 307; United
States v. Jones, 39 M.J. 315, 317 (C.M.A. 1994); United States
v. Boone, 49 M.J. 187, 194 (C.A.A.F. 1998); United States v.
Murphy, 50 M.J. 4, 16 (C.A.A.F. 1998); United States v. Sills,
56 M.J. 239, 239 (C.A.A.F. 2002); United States v. Gaskins, 72
M.J. 225, 231 (C.A.A.F. 2013); Winckelmann, 73 M.J. at 14.
13
United States v. Quick, No. 15-0347/MC
Of particular note are Sills and Winckelmann. In Sills,
the United States Air Force Court of Criminal Appeals (AFCCA)
set aside the appellant’s conviction for committing an indecent
act. 56 M.J. at 239. Citing legislative history and the
Supreme Court’s decision in Jackson, however, the AFCCA
determined it was without power to order a sentence-only
rehearing. Id. We reversed the AFCCA, finding that the court
“did not take into account this Court’s contrary, controlling
interpretation of Jackson.” Id. In making our determination,
we noted that this court’s position on Jackson had been
unchanged for over four decades and that the power of the CCAs
to order sentence-only rehearings had been recognized by both
the executive and legislative branches of government. Id. at
240.
Winckelmann included an issue as to whether the CCA abused
its authority when it failed to order a sentence rehearing.
73 M.J. at 13. In considering the issue, this Court again
addressed the Supreme Court’s holding in Jackson:
Although Jackson conclusively established the review
board’s authority to reassess sentences in appropriate
cases, in light of certain dicta in Jackson, a certain
amount of confusion arose as to the authority of the
board of review to order a rehearing on the sentence
alone. However, what confusion that might have arisen
as a result of the dicta in Jackson was resolved by
this Court in United States v. Miller. The Miller
court discussed Jackson and reaffirmed that “a
rehearing limited to sentence alone may be an
appropriate and permissive remedy for the cure of
errors not affecting findings.”
14
United States v. Quick, No. 15-0347/MC
This consistent practice has stood since 1959 without
legislative amendment by Congress.
Winckelmann, 73 M.J. at 14 (footnote and internal citations
omitted). 12
Risk of Undermining Public Confidence:
The Supreme Court has held that stare decisis “is the
preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.” Payne
v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J.
at 231. As noted, the Miller rule has been in effect for over
sixty years and during that time has become accepted procedure
in the military justice system. It has provided a predictable
and consistent appellate remedy for both litigants and the lower
courts to follow.
The executive branch has acknowledged the viability of the
Miller ruling when it extended the same authority to convening
authorities in the 1969 MCM, and also when it supported
Congress’s extension of that authority to the Judge Advocates
12
The Winckelmann court, however, was divided on this issue.
See 73 M.J. at 17 (Stucky, J., concurring in the result)
(“Despite the clear language of Jackson, this Court has refused
to follow it.”); id. at 17-18 (Ryan, J., concurring in the
result) (“I agree with Judge Stucky that the Jackson v. Taylor
language about rehearing on sentence alone is neither confusing
nor a mere dictum.”) (internal quotation marks and citations
omitted).
15
United States v. Quick, No. 15-0347/MC
General in 1983. The President has also specifically recognized
the CCA’s power to order sentence-only rehearing in several
provisions of the Rules for Courts-Martial (R.C.M.). See R.C.M.
810(a)(2); R.C.M. 1203(c)(2).
Conclusion
In the more than six decades since the adoption of the
UCMJ, this court has consistently interpreted Article 66(d),
UCMJ, to authorize CCAs to order sentence-only rehearings.
During that time the substantive language of the subsection has
not changed and the government has recognized that the CCAs have
the authority to order sentence-only rehearings, both before
Congress and this court. The ability of CCAs to order sentence-
only rehearings is an accepted and viable appellate remedy and
is relied upon by all litigants in the military justice system.
The government has failed to establish sufficient justification
to depart from the doctrine of stare decisis. See Arizona v.
Rumsy, 467 U.S. 203, 212 (1984) (any departure from the doctrine
of stare decisis demands special justification).
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
16
Appendix
• United States v. Murgaw, 2 C.M.A. 369, 371, 8 C.M.R. 169,
171 (1953) (setting aside the sentence in part but
“declin[ing] to exercise [the Court’s] power to order a
rehearing”) (Quinn, C.J., concurring) (Latimer, J.,
dissenting in part).
• United States v. McBride, 6 C.M.A. 430, 435, 20 C.M.R. 146,
151 (1955) (affirming the decision of board of review as to
sentence but reversing as to findings and directing a
rehearing as to sentence) (Quinn, C.J., concurring)
(Brosman, J., concurring in part and dissenting in part).
• United States v. Johnson, 7 C.M.A. 488, 494, 22 C.M.R. 278,
284 (1957) (setting aside the findings of guilty of
desertion and the sentence and authorizing a rehearing on
the sentence) (Ferguson, J., concurring) (Latimer, J.,
dissenting).
• United States v. Oakley, 7 C.M.A. 733, 736, 23 C.M.R. 197,
200 (1957) (affirming the decision of the board of review
with regard to guilty findings but setting aside the
sentence and authorizing a rehearing thereon) (Ferguson,
J., concurring) (Latimer, J., concurring in part and
dissenting in part).
• United States v. Guy, 8 C.M.A. 66, 67, 23 C.M.R. 290, 291
(1957) (setting aside the sentence and ordering the record
returned for submission to an appropriate court-martial
convening authority for rehearing on sentence) (Ferguson,
J., concurring) (Latimer, J., concurring in part and
dissenting in part).
• United States v. Rinehart, 8 C.M.A. 402, 410, 24 C.M.R.
212, 220 (1957) (reversing decision below as to sentence
and authorizing a rehearing thereon) (Quinn, C.J.,
concurring) (Latimer, J., dissenting).
• United States v. Hirrlinger, 8 C.M.A. 716, 718, 25 C.M.R.
220, 222 (1958) (finding error as to sentence and
authorizing a rehearing thereon) (Quinn, C.J., concurring)
(Ferguson, J., concurring in the result).
• United States v. Lowe, 9 C.M.A. 215, 215, 25 C.M.R. 477,
477 (1958) (setting aside the decision of the board of
review as to sentence and authorizing rehearing thereon)
(Ferguson, J., concurring) (Latimer, J., concurring in the
result).
• United States v. Varnadore, 9 C.M.A. 471, 476, 26 C.M.R.
251, 256 (1958) (reversing the decision below as to
sentence and authorizing rehearing thereon) (Ferguson, J.,
concurring) (Latimer, J., dissenting).
• United States v. Faylor, 9 C.M.A. 547, 548, 26 C.M.R. 327,
328 (1958) (reversing the decision below and authorizing a
rehearing as to sentence) (Quinn, C.J., concurring)
(Latimer, J., concurring in the result).
• United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370,
373 (1959) (affirming the authority under then Article
66(d), UCMJ, for a board of review body to order a sentence
rehearing).
• United States v. Crutcher, 11 C.M.A. 483, 484, 29 C.M.R.
299, 300 (1960) (setting aside the sentence and authorizing
reconsideration thereof) (Ferguson, J., concurring)
(Latimer, J., dissenting).
• United States v. Spellman, 11 C.M.A. 505, 505, 29 C.M.R.
321, 321 (1960) (setting aside the sentence and returning
the record of trial for reconsideration thereof) (Ferguson,
J., concurring) (Latimer, J., dissenting).
• United States v. Pope, 11 C.M.A. 520, 520, 29 C.M.R. 336,
336 (1960) (setting aside decision of the board of review
as to sentence and returning the record of trial for
reconsideration thereof) (Ferguson, J., concurring)
(Latimer, J., dissenting).
• United States v. Kitchens, 12 C.M.A. 589, 594, 31 C.M.R.
175, 180 (1961) (setting aside sentence for unlawful
command influence and authorizing the board of review to
reassess the sentence by eliminating a punitive discharge
or order sentence rehearing).
• United States v. Smith, 12 C.M.A. 594, 595, 31 C.M.R. 180,
180 (1961) (setting aside the sentence for possible
unlawful command influence and authorizing sentence
rehearing) (Ferguson, J., and Kilday, J., concurring).
• United States v. Barrett, 12 C.M.A. 598, 598, 31 C.M.R.
184, 184 (1961) (setting aside the sentence for possible
unlawful command influence and authorizing rehearing on
sentence) (Ferguson, J., and Kilday, J., concurring).
2
• United States v. Rosenblatt, 13 C.M.A. 28, 29, 32 C.M.R.
28, 29 (1962) (setting aside the decision of board of
review as to sentence and authorizing a rehearing thereon)
(Ferguson, J., and Kilday, J., concurring).
• United States v. Christopher, 13 C.M.A. 231, 234, 32 C.M.R.
231, 234 (1962) (affirming the authority of the board of
review, upon reassessment, to affirm a previously adopted
sentence or to remand an appropriate case for a rehearing
on sentence, but declining to hold that a board is required
to direct a rehearing on sentence in all such cases)
(Quinn, C.J., concurring) (Ferguson, J., concurring in part
and dissenting in part).
• United States v. Pope, 17 C.M.A. 156, 157, 37 C.M.R. 420,
421 (1967) (setting aside the sentence and authorizing a
rehearing thereon) (Quinn, C.J., and Ferguson, J.,
concurring).
• United States v. Smith, 22 C.M.A. 528, 529, 48 C.M.R. 13,
14 (1973) (per curiam) (setting aside the decision below as
to sentence and authorizing a rehearing thereon).
• United States v. Sidney, 23 C.M.A. 185, 185, 48 C.M.R. 801,
801 (1974) (per curiam) (reversing the decision below as to
Charge I, dismissing the attendant specifications, and
authorizing rehearing on sentence for remaining findings).
• United States v. Miller, 1 M.J. 357, 358 (C.M.A. 1976) (per
curiam) (reversing the decision below as to sentence and
authorizing a rehearing thereon).
• United States v. Willis, 3 M.J. 94, 96 (C.M.A. 1977)
(setting the sentence aside and authorizing a rehearing
thereon) (Fletcher, C.J., concurring) (Cook, J.,
dissenting).
• United States v. Landrum, 3 M.J. 160, 160 (C.M.A. 1977)
(summary disposition) (setting aside the sentence and
stating that, “[i]n the interests of justice, no further
proceedings will be held,” although “a new hearing on
sentence could be ordered”).
• United States v. James, 3 M.J. 341, 341 (C.M.A. 1977)
(summary disposition) (reversing the findings below in part
and authorizing a sentence rehearing based on remaining
guilty findings).
3
• United States v. Cummings, 3 M.J. 377, 377 (C.M.A. 1977)
(misc. docket) (reversing the decision below, dismissing
Charge IV and its specifications, and returning the case
for reassessment of the sentence).
• United States v. Roberts, 4 M.J. 91, 91 (C.M.A. 1977)
(reversing the decision below as to one specification,
dismissing that specification, and authorizing reassessment
of the sentence) (Cook, J., concurring).
• United States v. Chastain, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence) (Cook, J.,
dissenting).
• United States v. Merchant, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence) (Cook, J.,
concurring).
• United States v. Henderson, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence).
• United States v. Johnson, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence) (Cook, J.,
dissenting).
• United States v. Cader, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence) (Cook, J.,
dissenting).
• United States v. Adams, 4 M.J. 91, 91 (C.M.A. 1977)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing reassessment of the sentence).
• United States v. Vick, 4 M.J. 235, 236 (C.M.A. 1978)
(reversing the decision below as to additional Charge II
and authorizing sentence reconsideration).
4
• United States v. Ludlow, 5 M.J. 411, 412 (C.M.A. 1978)
(reversing the court below, setting aside the sentence
imposed, and authorizing a rehearing on the sentence)
(Fletcher, C.J., dissenting).
• United States v. Scott, 5 M.J. 431, 433 (C.M.A. 1978)
(setting aside sentence and authorizing a rehearing
thereon) (Perry, J., concurring) (Cook, J., dissenting).
• United States v. Webb, 6 M.J. 85, 85 (C.M.A. 1978)
(reversing the court below as to sentence and authorizing a
rehearing thereon).
• United States v. Bowman, 7 M.J. 260, 260 (C.M.A. 1979)
(summary disposition) (setting aside the findings of guilty
as to certain specifications and dismissing the same and
returning the record for reassessment of sentence based on
remaining findings of guilty) (Cook, J., dissenting).
• United States v. Swalley, 7 M.J. 261, 261 (C.M.A. 1979)
(summary disposition) (setting aside the findings of guilty
as to certain specifications and dismissing the same and
returning the record for reassessment of sentence based on
remaining findings of guilty) (Cook, J., dissenting).
• United States v. Fisher, 21 M.J. 327, 329 (C.M.A. 1987)
(reversing decision of the Court of Military Review and
returning for reassessment of sentence) (Everett, C.J.,
concurring).
• United States v. Silva, 21 M.J. 336, 337 (C.M.A. 1986)
(setting aside decision below as to sentence and
authorizing review thereof) (Everett, C.J., concurring in
the result).
• United States v. Bass, 22 M.J. 113, 113 (C.M.A. 1986)
(summary disposition) (reversing the decision below as to
sentence and authorizing a sentence rehearing in the event
appellate defense counsel so requests within twenty days of
the order).
• United States v. Murphy, 22 M.J. 113, 113 (C.M.A. 1986)
(summary disposition) (reversing the decision below as to
sentence and authorizing a sentence rehearing in the event
appellate defense counsel so requests within twenty days of
the order).
• United States v. Cozart, 22 M.J. 113, 113 (C.M.A. 1986)
(summary disposition) (reversing the decision below as to
5
sentence and authorizing a sentence rehearing in the event
appellate defense counsel so requests within twenty days of
the order).
• United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986)
(reaffirming the authority of the Court of Military Review
to authorize a rehearing on sentence) (Cox, J., and
Sullivan, J., concurring), discussed in United States v.
Abilar, 2001 CCA LEXIS 266, at *11-*12, 2001 WL 1345657, at
*4 (A.F. Ct. Crim. App. Oct. 31, 2001) (explaining this
authority is no longer limited to instances in which the
court is unable “to reliably determine what sentence would
have been imposed at the trial level if the error had not
occurred”) (internal quotation marks and citation omitted).
• United States v. Kinman, 25 M.J. 99, 102 (C.M.A. 1987)
(reversing the decision below as to sentence and
authorizing a rehearing thereon) (Sullivan, J., concurring)
(Cox, J., dissenting).
• United States v. Caraballo, 26 M.J. 216, 216 (C.M.A. 1988)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing sentence rehearing based on remaining
guilty findings) (Cox, J., dissenting).
• United States v. Deguzman, 26 M.J. 216, 216 (C.M.A. 1988)
(summary disposition) (reversing the decision below as to
certain specifications, dismissing those specifications,
and authorizing sentence rehearing based on remaining
guilty findings) (Cox, J., concurring in part and
dissenting in part).
• United States v. Mullens, 27 M.J. 398, 398 (C.M.A. 1988)
(summary disposition) (authorizing the sentence to be set
aside and a sentence rehearing to be held if facts proved
inadmissible and prejudicial error was found).
• United States v. English, 27 M.J. 398, 398 (C.M.A. 1988)
(setting aside the findings as to Charge I, dismissing
Charge I, and authorizing reassessment of sentence based on
the remaining guilty findings).
• United States v. Kirk, 31 M.J. 84, 90 (C.M.A. 1990)
(reversing the decision below as to sentence and
authorizing a rehearing thereon) (Everett, C.J., and Cox,
J., concurring).
6
• United States v. Hadlick, 31 M.J. 413, 413 (C.M.A. 1990)
(summary disposition) (affirming the findings below but
setting aside the sentence and authorizing a rehearing
thereon).
• United States v. Pompey, 33 M.J. 266, 267, 271 (C.M.A.
1991) (affirming the decision below to set aside the
sentence and authorize a rehearing thereon or, in the
alternative, authorizing a sentence of no punishment)
(Sullivan, C.J., and Cox, J., concurring).
• United States v. Martinez, 40 M.J. 82, 84 (C.M.A. 1994)
(reversing the decision below as to sentence and
authorizing a rehearing thereon) (Cox, J., Gierke, J., and
Wiss, J., concurring) (Crawford, J., concurring in result).
• United States v. Boone, 49 M.J. 187, 194 (C.A.A.F. 1998)
(reaffirming the Court of Criminal Appeals’ authority to
order a rehearing on sentence) (Cox, C.J., Crawford, J.,
Gierke, J., and Effron, J., concurring).
• United States v. Murphy, 50 M.J. 4, 16 (C.A.A.F. 1998)
(setting aside the decision below, remanding the case to
the CCA to review new evidence, and authorizing a rehearing
as to death sentence) (Sullivan, J., and Crawford, J.,
dissenting).
• United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000)
(affirming the decision below as to findings but reversing
as to sentence and authorizing a sentence rehearing)
(Gierke, J., joined by Crawford, C.J., concurring in the
result).
• United States v. Washington, 55 M.J. 441, 443 (C.A.A.F.
2001) (affirming the court below as to findings but
reversing as to sentence and authorizing a rehearing as to
sentence) (Crawford, C.J., dissenting).
• United States v. Sills, 56 M.J. 239, 239 (C.A.A.F. 2002)
(per curiam) (discussing the distinction between U.S.
Supreme Court precedent indicating that the Court of
Criminal Appeals is without authority to order a rehearing
on sentence, and that of the U.S. Court of Appeals for the
Armed Forces, holding that such courts indeed have the
power to authorize rehearings as to sentence).
• United States v. Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)
(affirming the findings but reversing the decision below as
7
to sentence and authorizing a sentence rehearing)
(Crawford, C.J., dissenting).
• United States v. Moffeit, 60 M.J. 348, 348 (C.A.A.F. 2004)
(setting aside the findings of guilt, remanding the case
and authorizing a sentence rehearing based on the remaining
offense), discussed by United States v. Moffeit, 63 M.J.
40, 41 (C.A.A.F. 2006).
• United States v. Baier, 60 M.J. 382, 385 (C.A.A.F. 2005)
(setting aside the decision below as to sentence and
authorizing a sentence rehearing).
• United States v. Quintanilla, 63 M.J. 29, 30-31 (C.A.A.F.
2006) (affirming the decision below to set aside the
sentence and authorizing a rehearing thereon).
• United States v. Davis, 63 M.J. 171, 175-76 (C.A.A.F. 2006)
(explaining the jurisdictional rules allowing for sentence
rehearings).
• United States v. Humphries, 71 M.J. 209, 211 (C.A.A.F.
2012) (dismissing the finding of guilty as to certain
charges, remanding the case for reassessment, and
authorizing a rehearing on the sentence, if necessary).
• United States v. Gaskins, 72 M.J. 225, 231 (C.A.A.F. 2013)
(reaffirming the power of an appellate body to authorize a
rehearing on sentence) (Stucky, J., concurring in part and
in the result) (Baker, C.J., concurring in part and
dissenting in part).
• United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F.
2013) (reviewing the U.S. Court of Appeals for the Armed
Forces precedent giving appellate bodies power to authorize
a sentence rehearing as compared to the U.S. Supreme Court
precedent that holds to the contrary).
8
United States v. Quick, No. 15-0347/MC
BAKER, Judge ∗ (concurring):
I concur with the majority opinion and its compelling
analysis of stare decisis. I write separately to make three
additional points.
First, while neither the Government nor Appellee have
analyzed the historical underpinnings of Article 66(d), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 866(d) (1996), the
legislative history of the UCMJ and the predecessor Articles of
War clearly indicates that Congress empowered the courts of
criminal appeals -- previously the boards of review –- to order
rehearings on sentence. The authority was first established in
1920, in Article 50½ of the Articles of War:
When . . . the board of review holds the record of trial
legally insufficient to support the findings or sentence,
either in whole or in part . . . such findings and sentence
shall be vacated in whole or in part . . . and the record
shall be transmitted through the proper channels to the
convening authority for a rehearing or such other action as
may be proper.
Article of War 50½ (1920) (emphasis added).
This authority was carried forward in the 1948 Elston Act,
through which Congress intended to retain “the substance of the
clauses of . . . Article of War 50½ relating to rehearings” in
the revised Articles of War, via Article of War 52. H.R. Rep.
∗
Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
United States v. Quick, No. 15-0347/MC
No. 1034, at 13 (1947). Article of War 52 stated that any
reviewing authority, including the boards of review and the
nominal predecessor of this Court -- the judicial council --
possessed the authority to order a rehearing on sentence:
When any reviewing or confirming authority disapproves a
sentence or when any sentence is vacated by action of the
board of review or judicial council . . . the reviewing or
confirming authority or the Judge Advocate General may
authorize or direct a rehearing.
Article of War 52 (1948). This authority, in turn, was included
in the UCMJ:
If the board of review sets aside the findings and
sentence, it may, except where the setting aside is based
on lack of sufficient evidence in the record to support the
findings, order a rehearing.
Article 66(d), UCMJ (1950).
Notwithstanding this history, the Government contends that
this Court “rewrote” Article 66(d), UCMJ, in United States v.
Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), in an ultra vires
grant of rehearing authority by judicial fiat. The problem with
this argument is that the courts of criminal appeals and
predecessor boards of review have possessed the power to order a
rehearing on sentence for nearly a century, and Congress never
intended anything to the contrary. In presenting Article 66(d),
UCMJ, to Congress, the Department of Defense succinctly
described the board of review’s rehearing power by referencing
2
United States v. Quick, No. 15-0347/MC
the like power of the convening authority under Article 63,
UCMJ:
Subdivision (d) deals with the power to order a rehearing.
(See Article 63.).
Uniform Code of Military Justice: Hearings on H.R. 2498 Before a
Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 914 (1949),
reprinted in Index and Legislative History, Uniform Code of
Military Justice (1950) (not separately paginated) [hereinafter
Legislative History].
The drafters noted in the commentary to Article 63, UCMJ
that the rehearing power was “adopted from” Article of War 52,
as amended by the 1948 Elston Act. Legislative History at 1180.
Article of War 52, in turn, was intended to restate the
substance of its predecessor, Article of War 50½. H.R. Rep. No.
1034, at 13. Article 50½ makes clear that the “findings and
sentence,” used in this context, refer to the findings or
sentence set aside by the board of review, “in whole or in
part.” In other words, statutory law dating back nearly a
century -- not one decision of this Court or the United States
Supreme Court viewed in a vacuum -- answers the question
certified by the Government.
Nonetheless, the Government invites this Court to
relitigate this issue as if Jackson v. Taylor, 353 U.S. 569
3
United States v. Quick, No. 15-0347/MC
(1957), had been decided yesterday, 1 and to analyze just what
Article 66(d), UCMJ, means as if it were new law.
My second point is this: the year is 2015, not 1958. In
the nearly six decades that have elapsed, the President has
consistently promulgated Rules for Courts-Martial authorizing
and establishing procedures for sentence-only rehearings. 2
United States v. Sills, 56 M.J. 239, 240 (C.A.A.F. 2002) (per
curiam) (unanimous) (noting that Rules for Courts-Martial
810(a)(2) and 1203(c)(2) specifically contemplate sentence-only
rehearings). The Manual for Courts-Martial (MCM), in turn, has
consistently differentiated between retrials and rehearings
(i.e., not every rehearing is a retrial on findings and
1
Contrary to the dissent’s contention, every judge of this Court
has not contravened Supreme Court precedent for more than six
decades. We have, in at least twenty cases, recognized
Jackson’s holding that Article 66(c), UCMJ, provides the
statutory authority for military appellate courts to conduct
sentence reassessment. See infra Appendix to Concurring
Opinion. That conclusion represents the holding of Jackson, as
explicitly recognized by the Supreme Court in the companion case
of Fowler v. Wilkinson, 353 U.S. 583, 585 (1957) (“[T]he board
of review had jurisdiction to modify the sentence. [The]
inquiry cannot be extended beyond that question.”).
2
The responses that the President cannot make substantive law,
or that he has merely acquiesced to this Court’s ultra vires
action, are not persuasive. In enacting these provisions, the
President is acting pursuant to his statutory authority to
establish procedural rules for the military justice system.
Article 36, UCMJ, 10 U.S.C. § 836 (2012).
4
United States v. Quick, No. 15-0347/MC
sentence), and has specifically contemplated “rehearings on
sentence only.” E.g., MCM para. 81(b)(2) (1969 ed.). 3
Rehearings on sentence, therefore, have been contemplated
by Congress since the Articles of War, and relevant procedures
have been consistently promulgated by the President and
recognized by the Department of Defense. As the majority
opinion notes, they are not unworkable under well-understood
principles of stare decisis. But an equally important
consideration, and my third point, is that the Government’s
position is itself unworkable and may raise serious
constitutional questions.
3
The MCM has discussed rehearings on sentence since the first
edition dealing with the UCMJ was published in 1951, noting that
“[i]f a sentence is disapproved because of any procedural error
prejudicial to the substantial rights of the accused, a
rehearing may properly be ordered” by the convening authority,
the board of review, or the Court of Military Appeals. MCM ch.
XVIII, para. 92 (1951 ed.). And, of course, editions of the MCM
published under the Articles of War provided guidance for issues
presented by sentence-only rehearings. For example, the
commentary accompanying Article 50½ in the 1936 edition of the
MCM stated that when the “board of review and the Judge Advocate
General hold the record of trial to be legally insufficient to
support a sentence requiring confirmation by the President
before its execution, the record should not be submitted to the
Secretary of War for the action of the President but should be
returned to the reviewing authority in accordance with the
provisions of A.W. 50½ for re-hearing or such other action as
may be proper.” A Manual for Courts-Martial, U.S. Army app. 1
at 216 (1936 ed.).
5
United States v. Quick, No. 15-0347/MC
The Government’s position (or at least the Navy’s position
in this case) is that appellate courts within the military
justice system lack the power to order a rehearing on sentence. 4
This position ignores the fact that in some cases, a military
appellate court “cannot reliably determine what sentence would
have been imposed at the trial level if the error had not
occurred. Under these circumstances, a rehearing on sentence is
in order.” United States v. Sales, 22 M.J. 305, 307 (C.M.A.
1986). This consideration is perhaps most obviously illustrated
by prejudicial error arising in the sentencing phase of a
capital case. Presumably, in the Government and the dissent’s
view, prejudicial legal error in the penalty phase of a capital
trial could be resolved on appeal as follows:
(1) The Court of Criminal Appeals (CCA) may find
constitutional error, such as ineffective assistance
of counsel.
(2) The CCA may test the error for harmlessness, and
conclude that the error is not harmless beyond a
reasonable doubt.
4
In the context of this litigation, this position is taken by
the Navy’s Appellate Government Division, and individual
appellate divisions have decided whether or not to file amicus
briefs. The filings do not reflect whether the assertion that
appellate courts within the military justice system lack the
authority to order a rehearing on sentence represents the
coordinated position of the Department of Defense, the President
of the United States, or the United States government.
6
United States v. Quick, No. 15-0347/MC
(3) The CCA may proceed to reassess the death sentence. 5
The CCA may not order a rehearing on sentence, because
it lacks that authority under Article 66(d), UCMJ,
even when presented with prejudicial constitutional
error.
(4) The CCA may conclude by majority vote that,
notwithstanding constitutional error prejudicial to
the appellant’s substantial rights under Article
59(a), UCMJ, during the sentencing phase of trial, the
death penalty is appropriate.
As a general matter, “absurd results are to be avoided if
alternative [statutory] interpretations consistent with the
legislative purpose are available.” Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982). 6 That principle
5
Sentence reassessment is not synonymous with sentence
reduction; reduction is not automatically required in the case
of reassessment. Sales, 22 M.J. at 308.
6
As recently as 2006, the Navy’s Appellate Government Division
took the view that military appellate courts may order
rehearings on sentence, and successfully asked this Court to
order such a hearing in a death penalty case. United States v.
Quintanilla, 63 M.J. 29 (C.A.A.F. 2006). When Quintanilla moved
for reconsideration and argued that the unique nature of
military death penalty proceedings entitled him to a rehearing
on both findings and sentence, the Navy’s reply characterized
his position as “at odds with established case law,” and stated
that it “would lead to obviously absurd results.” Government’s
Answer to Petition for Reconsideration, United States v.
Quintanilla, Nos. 05-0274 and 05-5001, 2006 WL 1087142, at *3
(C.A.A.F. Apr. 11, 2006).
7
United States v. Quick, No. 15-0347/MC
applies here, where nothing suggests that Congress intended such
a scheme. Moreover, even under Congress’s authority to make
rules for the government and regulation of the land and naval
forces, it is not at all clear that the system envisioned by the
Government -- allowing appellate courts to reassess and affirm a
death sentence notwithstanding prejudicial constitutional error
during the sentencing phase -- would afford a military appellant
the due process protections guaranteed by the Constitution.
Thus, when asked whether to adhere to our long-standing
interpretation of a statutory provision and its predecessors
which have permitted rehearings on sentence since 1920, or
whether to adopt a new construction that would raise novel
constitutional questions, this Court is “obligated to construe
the statute to avoid [constitutional] problems if it is fairly
possible to do so.” Boumediene v. Bush, 553 U.S. 723, 787
(2008) (citing I.N.S. v. St. Cyr, 533 U.S. 289, 299 (2001)
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))) (internal
quotation marks omitted).
In light of these considerations, the question might
reasonably be asked, why, if every Judge of this Court has
ignored Supreme Court precedent for more than sixty years, not a
single Justice of the Supreme Court has so indicated in
8
United States v. Quick, No. 15-0347/MC
evaluating petitions for writ of certiorari. 7 In United States
v. Thomas, 66 M.J. 382 (C.A.A.F. 2008), cert. denied, 555 U.S.
886 (2008), the petitioner quoted Jackson’s language finding “no
authority” for sentence rehearings in the UCMJ, argued that
there was a split between this Court and other federal courts of
appeals regarding the authority to remand a case for
resentencing, and asserted that “there is a question as to
whether the CAAF even has the authority under the UCMJ to remand
a case for resentencing.” Petition for a Writ of Certiorari,
Thomas v. United States, No. 08-117, 2008 WL 2900046, at *13,
*17 (July 24, 2008). Of course, denials of certiorari are not
precedential, but if -- as the dissent contends -- this Court
has disregarded the hierarchy of the federal judiciary and
supported judicial “anarchy” for over six decades, it stands to
reason that the Supreme Court might say so. 8 See U.S. Sup. Ct.
7
In at least four petitions for writ of certiorari, petitioners
have explicitly challenged the sentence reassessment power of
military appellate courts, and have noted the possibility of
sentence rehearings under this Court’s case law and Article
66(d), UCMJ. See United States v. Thomas, 66 M.J. 382 (C.A.A.F.
2008), cert. denied, 555 U.S. 886 (2008); United States v.
Hoskins, 39 M.J. 361 (C.M.A. 1994), cert. denied, 513 U.S. 809
(1994); United States v. Arguello, 30 M.J. 219 (C.M.A. 1990),
cert. denied, 498 U.S. 846 (1990); United States v. Burns, 25
M.J. 218 (C.M.A. 1987), cert. denied, 484 U.S. 977 (1987).
8
Apart from arguing that a rehearing on sentence should have
been ordered, in some cases, petitioners stated that a rehearing
on sentence had been ordered or had already occurred. E.g.,
United States v. McMurrin, 73 M.J. 243 (C.A.A.F. 2014), cert.
9
United States v. Quick, No. 15-0347/MC
R. 10(c). Alternatively, if the argument raised by the dissent
has long been settled, then no further consideration would
appear necessary.
In summary, this Court was correct in 1959, when it
determined that appellate courts within the military justice
system have the power to order sentence-only rehearings.
Miller, 10 C.M.A. at 298–99, 27 C.M.R. at 372–74. Whatever the
import of the Supreme Court’s dictum in 1957 finding “no
authority” for the procedure -- made in the course of denying
relief to a habeas petitioner challenging the reassessment power
of the boards of review -- there is such authority today, and it
has been consistently recognized by this Court, the Department
of Defense, and the President. As the Navy argued in 2006, to
conclude otherwise “would lead to obviously absurd results.”
denied, 135 S. Ct. 382 (2014); Quintanilla, 63 M.J. 29, cert.
denied, 549 U.S. 886 (2006); United States v. Saintaude, 61 M.J.
175 (C.A.A.F. 2005), cert. denied, 546 U.S. 979 (2005); United
States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004); cert. denied,
544 U.S. 923 (2005); United States v. Johanns, 20 M.J. 155
(C.M.A. 1985), cert. denied, 474 U.S. 850 (1985).
10
United States v. Quick, No. 15-0347/MC
APPENDIX TO CONCURRING OPINION
Cases Addressing Jackson v. Taylor, 353 U.S. 569 (1957)
United States v. Cummins, 9 C.M.A. 669, 679, 26 C.M.R. 449, 459
(1958) (Ferguson, J., dissenting) (noting that Jackson addressed
the “power of the boards of review to determine appropriateness
of sentence”).
United States v. French, 10 C.M.A. 171, 185, 27 C.M.R. 245, 259
(1959) (Latimer, J.) (recognizing Jackson’s determination that
an accused is not “as a matter of law” entitled to a sentence
rehearing in all cases).
United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373
(1959) (Latimer, J.) (concluding that the Supreme Court’s
decision in Jackson was addressed to sentence reassessment and
did not intend to disturb existing rehearing practice).
United States v. Russo, 11 C.M.A. 352, 358, 29 C.M.R. 168, 174
(1960) (Ferguson, J.) (citing Jackson for the proposition that
the boards of review have broad power to determine sentence
appropriateness).
United States v. Rhodes, 11 C.M.A. 734, 745, 29 C.M.R. 551, 561
(1960) (Quinn, C.J.) (reaffirming the board of review’s
reassessment power as upheld in Jackson).
United States v. Lindsay, 12 C.M.A. 235, 242, 30 C.M.R. 235, 242
(1961) (Latimer, J., concurring in the result) (citing Jackson
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for the proposition that, while sentence rehearings are
permissible, sentence reassessment was appropriate).
United States v. Christopher, 13 C.M.A. 231, 234, 32 C.M.R. 231,
234 (1962) (Kilday, J.) (noting that Article 66(c), UCMJ,
authorizes the unique military procedure, approved by the
Supreme Court in Jackson, of sentence reassessment).
United States v. Zunino, 15 C.M.A. 179, 180, 35 C.M.R. 151, 152
(1964) (Kilday, J.) (citing Jackson for the proposition that
sentence rehearing, while permissible, was not required).
United States v. Glaze, 22 C.M.A. 230, 230-31, 46 C.M.R. 230,
230-31 (1973) (Darden, C.J.) (upholding the lower court’s power
to reassess the sentence under Article 66(c), UCMJ, and
Jackson).
United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986) (Everett,
C.J.) (concluding that sentence reassessment under Article
66(c), UCMJ, is constitutional, citing Jackson).
United States v. Boone, 49 M.J. 187, 195 (C.A.A.F. 1998)
(Ripple, Circuit Judge, sitting by designation) (reading Jackson
and Miller together to conclude that both sentence reassessment
and sentence rehearings are permissible appellate remedies).
United States v. Curtis, 52 M.J. 166, 168 (C.A.A.F. 1999) (per
curiam) (recognizing that Jackson upheld the reassessment power
of military appellate courts under Article 66(c), UCMJ).
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United States v. Eversole, 53 M.J. 132, 133 (C.A.A.F. 2000)
(Cox, S.J.) (same).
United States v. Wilson, 54 M.J. 57, 61 (C.A.A.F. 2000)
(Sullivan, J., concurring in part and dissenting in part)
(citing Jackson in relation to Article 66(c), UCMJ).
United States v. Sills, 56 M.J. 239, 239 (C.A.A.F. 2002) (per
curiam) (unanimous) (concluding that the lower court erred in
finding that it had no authority to order a sentence rehearing
under Jackson); see also Sills, 57 M.J. 606, 607 (A.F. Ct. Crim.
App. 2002) (Breslin, S.J.) (explaining that the Air Force Court
of Criminal Appeals was “well aware of its authority to order a
rehearing on sentence,” and asserting that its original opinion
was misconstrued by all parties).
United States v. Doss, 57 M.J. 182, 187 (C.A.A.F. 2002)
(Crawford, C.J., concurring in part and dissenting in part)
(citing Jackson and Miller to support the CCA’s authority to
reassess the sentence under Article 66(c), UCMJ).
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002
(Gierke, J.) (noting that the Supreme Court’s decision in
Jackson affirmed the practice of sentence reassessment under
Article 66, UCMJ).
United States v. Washington, 57 M.J. 394, 405 (C.A.A.F. 2002)
(Sullivan, S.J., concurring in part and dissenting in part)
(citing Jackson in connection with Article 66(c), UCMJ).
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United States v. Nerad, 69 M.J. 138, 142 n.3 (C.A.A.F. 2010)
(Ryan, J.) (“the dissent’s interpretation of Jackson [(Stucky,
J., dissenting)] is squarely at odds with this Court's
interpretation”).
United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013)
(Baker, C.J.) (“[W]hat confusion that might have arisen as a
result of the [Supreme Court’s] dicta in Jackson was resolved by
this Court in [Miller]”).
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United States v. Quick, No. 15-0347/MC
STUCKY, Judge, with whom OHLSON, Judge, joins (dissenting):
Stare decisis is defined as “[t]he doctrine of precedent,
under which a court must follow earlier judicial decisions when
the same points arise again in litigation.” Black’s Law
Dictionary 1626 (10th ed. 2014). The doctrine encompasses at
least two distinct concepts, only one of which is raised by this
case: (1) “an appellate court[] must adhere to its own prior
decisions, unless it finds compelling reasons to overrule
itself” (horizontal stare decisis); and (2) courts “must
strictly follow the decisions handed down by higher courts”
(vertical stare decisis). Id. The majority employs the former
to enshrine this Court’s flawed opinion in United States v.
Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), when the latter is
the only relevant inquiry.
Citing Jackson v. Taylor, 353 U.S. 569 (1957), the Judge
Advocate General of the Navy asked this Court whether the courts
of criminal appeals are authorized to remand cases for
rehearings on sentence alone. The majority begins by correctly
describing the genesis of the issue. In Jackson, the petitioner
contested the authority of the United States Army Board of
Review to reassess his sentence instead of remanding for a
sentence rehearing. Id. at 571. The Supreme Court concluded:
Finally, the petitioner suggests that the case should be
remanded for a rehearing before the court-martial on the
question of the sentence. We find no authority in the
United States v. Quick, No. 15-0347/MC
Uniform Code for such a procedure and the petitioner points
to none. The reason is, of course, that the Congress
intended that the board of review should exercise this
power. This is true because the nature of a court-martial
proceeding makes it impractical and unfeasible to remand
for the purpose of sentencing alone. See United States v.
Keith, 1 C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). Even
petitioner admits that it would now, six years after the
trial, be impractical to attempt to reconvene the court-
martial that decided the case originally. A court-martial
has neither continuity nor situs and often sits to hear
only a single case. Because of the nature of military
service, the members of a court-martial may be scattered
throughout the world within a short time after a trial is
concluded. Recognizing the impossibility of remand to the
same court-martial, petitioner suggests as an alternative
that the case should be remanded for a rehearing before a
new court-martial. He admits that it would now be
impractical for such a new court-martial to hear all of the
evidence, and that the court would have to make its
sentence determination on the basis of what it could learn
from reading the record. Such a procedure would merely
substitute one group of nonparticipants in the original
trial for another. Congress thought the board of review
could modify sentences when appropriate more expeditiously,
more intelligently, and more fairly. Acting on a national
basis the board of review can correct disparities in
sentences and through its legally-trained personnel
determine more appropriately the proper disposition to be
made of the cases. Congress must have known of the
problems inherent in rehearing and review proceedings for
the procedures were adopted largely from prior law. It is
not for us to question the judgment of the Congress in
selecting the process it chose.
Id. at 579-80 (emphasis added) (footnotes omitted).
Two years after Jackson, the Court of Military Appeals
flatly ignored the Supreme Court’s explicit holding. Miller, 10
C.M.A. at 297, 27 C.M.R. at 371. The Court of Military Appeals
noted that it was the practice of military courts to order
rehearings on sentence alone before Jackson. Id. at 299, 27
2
United States v. Quick, No. 15-0347/MC
C.M.R. at 373. It asserted that the UCMJ does not prohibit, and
“impliedly authorizes,” remands for rehearings on only the
sentence. Id. at 299, 27 C.M.R. at 373.
Moreover, as the board of review pointed out in its well-
reasoned opinion, the literal but entirely unreasonable
construction of Article 66(d), supra, can easily be avoided
merely by substituting “or” for “and,” construing that
statute to provide, “If the board of review sets aside the
findings or sentence, it may . . . order a rehearing.”
(Emphasis supplied.)
Id. at 299, 27 C.M.R. at 373 (quoting United States v. Miller,
26 C.M.R. 673, 680 (A.B.R. 1958)).
The Court of Military Appeals’ decision in Miller
contravened vertical stare decisis by analyzing de novo whether
the UCMJ authorized a sentence rehearing, rather than applying
the Supreme Court precedent from Jackson. The Supreme Court has
unequivocally condemned such actions:
[T]he Court of Appeals could be viewed as having ignored,
consciously or unconsciously, the hierarchy of the federal
court system created by the Constitution and
Congress. . . . [U]nless we wish anarchy to prevail within
the federal judicial system, a precedent of [the Supreme]
Court must be followed by the lower federal courts no
matter how misguided the judges of those courts may think
it to be.
Hutto v. Davis, 454 U.S. 370, 374–75 (1982); see United States v.
Tualla, 52 M.J. 228, 230 (C.A.A.F. 2000) (recognizing that lower
courts are bound by decisions of superior courts).
Today, the majority analyzes the issue presented by
employing the criteria for overruling one of its own decisions
3
United States v. Quick, No. 15-0347/MC
(horizontal stare decisis). United States v. Quick, __ M.J. __,
__ (9) (determining whether the precedent is unworkable or badly
reasoned (citing Tualla, 52 M.J. at 231), and examining
intervening events, reasonable expectations of servicemembers,
and the risk of undermining public confidence in the law (citing
United States v. Boyett, 42 M.J. 150, 154 (C.A.A.F. 1995))). 1
This would be all well and good in the proper context. It
misses the point entirely in the context actually presented.
The question is not whether intervening developments, reasonable
expectations, and the like support overruling Miller vel non,
but the intrinsic legitimacy of Miller in the first place. The
fact that we as a court may have gotten away with ignoring
Jackson v. Taylor for decades does not justify repeating the
error when the question is squarely presented, as it is here.
This conversion of the question from one of vertical to
horizontal stare decisis demonstrates a basic misunderstanding
of the doctrine and of this Court’s place in the judicial
hierarchy. The questions raised in Tualla and Boyett are
relevant only when an appellate court is deciding whether to
overturn one of its own precedents, not when it is “compelled to
1
Furthermore, the majority’s horizontal stare decisis discussion
is flawed. The majority asserts that a rehearing on sentence
alone is not unworkable. Quick, __ M.J. at __ (10). But we are
bound by the Supreme Court’s specific holding to the contrary.
Jackson, 353 U.S. at 579–80. Moreover, anyone who has
participated in a sentence rehearing will confirm the accuracy
of the Supreme Court’s characterization of the practice.
4
United States v. Quick, No. 15-0347/MC
apply the precedent of a higher court.” Jaffree v. Wallace, 705
F.2d 1526, 1532 (11th Cir. 1983), aff’d in part, 466 U.S. 924
(1984), and aff’d, 472 U.S. 38 (1985).
The real issue presented is whether the Supreme Court’s
decision in Jackson was a holding which this Court is bound to
apply. If, as a majority of this Court believes, the Supreme
Court’s conclusions regarding sentence-only rehearings were not
dicta, 2 the application of horizontal stare decisis is simply
irrelevant. As Senior Judge Everett so eloquently stated:
The fundamental error in the court’s analysis was in
according the policy of stare decisis an aspect of
flexibility that it does not have. A precedent-making
decision may be overruled by the court that made it or by a
court of a higher rank. That discretion, however, does not
reside in a court of a lower rank
United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)
(quotation marks and citation omitted) (referring to failure of
a court of criminal appeals to follow Court of Military Appeals
precedent).
Both the majority and concurring opinions attach some
significance to the President’s mention of sentence-alone
rehearings in Rules for Courts-Martial 810(a)(2) and 1203(c)(2),
presumably pursuant to his authority under Article 36(a), UCMJ,
10 U.S.C. § 836(a) (2012). See Quick, __ M.J. at __ (15-16);
2
See United States v. Winckelmann, 73 M.J. 11, 16 (C.A.A.F.
2013) (Stucky, J., concurring in the result); id. at 17 (Ryan,
J., concurring in the result).
5
United States v. Quick, No. 15-0347/MC
id. at __ (3-4) & nn.2, 3 (Baker, J., concurring). But Article
36(a), UCMJ, grants the President authority only to prescribe
rules for courts-martial “which may not be contrary to or
inconsistent with [the UCMJ].” As the Supreme Court has held
that the UCMJ does not authorize rehearings on sentence alone,
the President may not establish a rule to the contrary. 3
As the majority refuses to recognize the primacy of the
Supreme Court’s decision in Jackson, and insists on continuing
the original sin of Miller, I respectfully dissent.
3
Parenthetically, since the Supreme Court in Jackson was
construing the Article 66, UCMJ, powers of the boards of review,
I fail to see the relevance of an extended disquisition on
rehearing practice under the Articles of War. One might think
that the Supreme Court’s interpretation of a then-recent statute
would be a more compelling analysis.
6