United States v. Shea , 2017 CAAF LEXIS 518 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Patrick A. SHEA, Senior Airman
United States Air Force, Appellant
No. 16-0530
Crim. App. No. S32225
Argued January 11, 2017—May 30, 2017
Military Judge: Joshua Kastenberg
For Appellant: Major Isaac C. Kennen (argued); Captain
Patrick A. Clary (on brief).
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel
Katherine E. Oler and Major Meredith L. Steer (on
brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges STUCKY,
RYAN, and OHLSON, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
Appellant was tried by a military judge sitting as a spe-
cial court-martial at Scott Air Force Base, Illinois. In ac-
cordance with Appellant’s pleas, he was found guilty of one
specification of disobeying a superior commissioned officer
and two specifications of assault consummated by a battery,
in violation of Articles 90 and 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 890, 928 (2012). Appellant was
also convicted of, contrary to his pleas, one specification of
assault consummated by battery and one specification of
communicating a threat, in violation of Articles 128 and 134,
UCMJ, 10 U.S.C. §§ 928, 934 (2012).
The military judge sentenced Appellant to a bad-conduct
discharge, four months of confinement, forfeiture of $750.00
pay per month for four months, reduction to E-1, and a rep-
rimand. The convening authority approved the bad-conduct
United States v. Shea, No. 16-0530/AF
Opinion of the Court
discharge, the term of confinement, the reduction, and the
reprimand. 1
On appeal under Article 66, UCMJ, 10 U.S.C. § 866(2012), the United States Air Force Court of Criminal Ap-
peals (AFCCA) set aside the conviction concerning Specifica-
tion 3 of Charge I (assault consummated by battery) and re-
assessed the sentence. United States v. Shea, No. ACM
S32225, slip op. at 8 (A.F. Ct. Crim. App. May 21, 2015). Ap-
pellant filed a petition for this Court to review the AFCCA’s
sentence reassessment. United States v. Shea, 75 M.J. 49(C.A.A.F. 2015). We granted review and affirmed the
AFCCA’s decision as to the findings. Id. However, we re-
versed as to the sentence and remanded for a new sentence
reassessment based on the affirmed findings of guilt. Id. The
AFCCA reassessed Appellant’s sentence and affirmed the
sentence approved by the convening authority. United States
v. Shea, No. ACM 32225 (rem), slip op. at 3 (A.F. Ct. Crim.
App. May 6, 2016).
Appellant petitioned this Court for review and we grant-
ed on the following issues:
I. Whether the Court of Criminal Appeals erred
on remand when, over Appellant’s timely objec-
tion, this case was assigned to a panel that did
not include all three of the judges from the orig-
inal decision.
II. Whether a reasonable observer would question
the impartiality or independence of the Court of
Criminal Appeals after witnessing the removal
of Judge Hecker from this case on remand fol-
lowing the Government's allegations that her
impartiality has been impaired by the decision
of the Judge Advocate General, who is himself
part of the Government, to assign her to per-
form non-judicial additional duties within the
government.
Remand is a remedy frequently utilized by this Court.
Depending on the workload of the lower courts, as well as a
1 The convening authority did not approve the adjudged forfei-
tures and waived the mandatory forfeitures under Article 58b,
UCMJ, 10 U.S.C. § 858b (2012), for the benefit of Appellant’s de-
pendent spouse and children.
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United States v. Shea, No. 16-0530/AF
Opinion of the Court
host of other reasons, this frequent interchange of cases may
result in panels reviewing cases on remand that were not
originally assigned to them. The threshold issue, therefore,
is whether an accused has a right to have a panel composed
of the same appellate judges review his case. We hold that
no such right exists and thus, there was no error when a
panel composed of different appellate judges reviewed Ap-
pellant’s case on remand. We also hold that Appellant failed
to establish some evidence of apparent unlawful command
influence where his claim amounted to no more than a claim
of command influence in the air.
Background
The AFCCA’s First Sentence Reassessment
The underlying facts relating to the charges are not es-
sential to our analysis of the issues, but the AFCCA charac-
terized the facts as follows:
The charges in this case arose out of an abusive
relationship between Appellant and his wife. Ap-
pellant was arrested in November 2013 after strik-
ing his wife and threatening her with a knife. For
this incident, the Appellant was found guilty of as-
sault consummated by a battery and communi-
cating a threat. In addition to the November 2013
incident, the Appellant was also convicted of as-
saulting his wife twice during the fall of 2011. [One
specification alleged he struck her on the back with
his hand. The other specification alleged Appellant
threw a baby bottle at her].
Shea, No. ACM S32225, slip op. at 2. Appellant appealed his
conviction to the AFCCA and argued that the Government
failed to disclose certain statements in the victim’s medical
records. Id. at 3-4. Appellant’s case was assigned to a three-
judge panel composed of Chief Judge Allred, Senior Judge
Teller, and Judge Hecker. Id. at 1. On May 21, 2015, this
three-judge panel issued a decision setting aside the convic-
tion concerning Specification 3 of Charge I and reassessed
the sentence. Id. at 8. The panel reassessed Appellant’s sen-
tence to the sentence adjudged by the military judge, rather
than the sentence approved by the convening authority. Id.
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Opinion of the Court
Appellant filed a petition requesting that this Court re-
view whether the AFCCA erred in reassessing his sentence.
Shea, 75 M.J. at 49. We granted review and affirmed the
AFCCA’s decision as to findings, but reversed as to the sen-
tence and remanded for a new sentence reassessment based
on the affirmed findings of guilt. Id.
The AFCCA’s Second Sentence Reassessment
On October 26, 2015, the AFCCA issued an order stating,
“Effective 15 October 2015, Colonel Karen Hecker is at-
tached to AFLOA/JAJM as the Senior IMA.” 2 This order also
indicated that the Judge Advocate General was continuing
Colonel Hecker’s appointment as an appellate military judge
on the AFCCA. Notice was provided to both the government
and defense appellate divisions of Colonel Hecker’s dual sta-
tus.
In another unrelated case, United States v. Rivera, the
Government filed a Motion for Leave to File Motion for
Recusal of Appellate Judge and Motion for Reconsideration,
with the AFCCA. The Government argued that Judge
Hecker’s dual appointment status might lead a reasonable
person to question her impartiality. Despite this argument,
the AFCCA denied the motion.
On April 8, 2016, the AFCCA issued a special panel order
listing the appellate military judges that would hear Appel-
lant’s case on remand. Judge Hecker was not one of the
judges. The order did not specify the reasons the panel was
not composed of the same judges that had originally heard
Appellant’s appeal. The new panel was composed of Judge
Allred, Judge Teller, and Judge Zimmerman.
Appellant objected to the change in panel composition
asserting that Congress prohibited a new panel from recon-
sidering a previous panel’s decision. Appellant’s motion was
denied. Ultimately, the new panel reassessed Appellant’s
sentence and affirmed the sentence approved by the conven-
ing authority. Shea, No. ACM 32225 (rem), slip op. at 3.
2 Air Force Legal Operations Agency (AFLOA); Military Jus-
tice Division (JAJM); and Individual Mobilization Assistants
(IMAs). IMAs are reservists that support an operational require-
ment for their respective branch.
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United States v. Shea, No. 16-0530/AF
Opinion of the Court
I.
We first address the issue of whether the AFCCA erred
by assigning Appellant’s case to a panel that did not include
all three of the judges from the original decision.
Appellant argues that the AFCCA improperly changed
the composition of the panel that was assigned to review his
case on remand. Brief for Appellant at 6-9, United States v.
Shea, No. 16-0530 (C.A.A.F. Oct. 14, 2016). The AFCCA is a
court of limited jurisdiction and possesses only that power
authorized by the Constitution and statute. United States v.
LaBella, 75 M.J. 52, 53 (C.A.A.F. 2015) (citing United States
v. Daly, 69 M.J. 485, 486 (C.A.A.F. 2011)).
The Courts of Criminal Appeals are established by Arti-
cle 66, UCMJ, which provides in pertinent part:
(a) Each Judge Advocate General shall establish a
Court of Criminal Appeals which shall be composed
of one or more panels, and each such panel shall be
composed of not less than three appellate military
judges. For the purpose of reviewing court-martial
cases, the court may sit in panels or as a whole in
accordance with rules prescribed under subsection
(f)…. The Judge Advocate General shall designate
as chief judge one of the appellate military judges
of the Court of Criminal Appeals established by
him. The chief judge shall determine on which pan-
els of the court the appellate judges assigned to the
court will serve and which military judge assigned
to the court will act as the senior judge on each
panel.
….
(f) The Judge Advocates General shall prescribe
uniform rules of procedure for Courts of Criminal
Appeals and shall meet periodically to formulate
policies and procedure in regard to review of court-
martial cases in the offices of the Judge Advocates
General and by Courts of Criminal Appeals.
The Air Force Rules of Practice and Procedure provide fur-
ther guidance on the granted issue:
When a case is remanded directly to the Court by
the United States Court of Appeals for the Armed
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United States v. Shea, No. 16-0530/AF
Opinion of the Court
Forces (hereinafter CAAF), it shall, when practical,
be referred to the same numbered panel that last
decided the case.
A.F.C.C.A. R. 2.2(b). Nothing in the UCMJ, or rules of pro-
cedure provide Appellant the right to select a panel, or have
his case considered by any particular panel. Article 66,
UCMJ; A.F.C.C.A. R. 2.2(b); United States v. Vines, 15 M.J.
247, 249 (C.M.A. 1983). By law, the court may review cases
en banc or in panels, and the chief judge of the court has
broad authority to assign, remove and reassign judges to
cases on the court’s docket. See Vines, 15 M.J. at 249 (hold-
ing “that there are no restrictions—statutory or regulatory—
on the authority of the Chief Judge, as administrative chief
of the Court, to assign cases to panels as he wishes. In addi-
tion, the power to change panel assignment, once made, is
likewise unrestricted”).
In Vines, the accused’s case was sent to the Army Court
of Military Review and was assigned to Panel Four. 15 M.J.
at 248. Through administrative or clerical error the case was
inadvertently delivered to Panel Five. Id. Naturally, Panel
Five was composed of different appellate judges than Panel
Four. Id. After hearing the case, Panel Five affirmed the ac-
cused’s conviction. Id. The Vines court determined that it
was error for another panel to decide the case absent a
change-of-assignment order, however, that error was not
prejudicial to the accused. Id. at 249. In the instant case the
AFCCA did not err. Unlike Vines, the AFCCA issued a prop-
er order notifying the parties of the change in the panel’s
composition. 3
We recognize that, “many reasons exist for a change of
assignment of cases ranging from workload of particular
panels to reassignment of judges from a panel.” Id. The con-
sideration of Appellant’s case by any properly constituted
panel satisfies Article 66, UCMJ. Vines, 15 M.J. at 249.
Moreover, the Vines court explicitly recognized “that the ac-
cused attains no right to have his case considered by any
3 Generally, absent exceptional circumstances, a judge should
hear and decide matters assigned unless disqualified. United
States v. Witt, 75 M.J. 380, 383 (C.A.A.F. 2016) (citing Laird v.
Tatum, 409 U.S. 824, 837 (1972)).
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Opinion of the Court
particular panel either before or after the first random as-
signment by the office of the Clerk.” Id. Appellant does not
challenge the qualifications of the appellate military judges
who reviewed his case, and there is nothing in the record be-
fore this Court which could support such a challenge. Brief
for Appellant at 6-13, Shea, No. 16-0530 (C.A.A.F. Oct. 14,
2016). Thus, Article 66, UCMJ, was satisfied.
Article 66(a), UCMJ, governs the Court of Criminal Ap-
peals’ power to review cases and Appellant’s argument cen-
ters on Congress’s intent for enacting the statute. Brief for
Appellant at 6-9, Shea, No. 16-0530 (C.A.A.F. Oct. 14, 2016).
Appellant relies on a line of cases that “construe[d] Article
66(a) as meaning that cases are to be reviewed and decided
by panels of the court or by the entire court, but that the
same case may not be decided by two different groups of
judges.” United States v. Wheeler, 20 C.M.A. 595, 598, 44
C.M.R. 25, 28 (1971) (referencing United States v. Chilcote,
20 C.M.A. 283, 286, 43 C.M.R. 123, 126 (1971)). To further
support his argument, Appellant cites United States v. Rob-
ertson, which determined that, “generally, and whenever
possible, an appellant should receive review of his case by a
board of review constant in membership.” 17 C.M.A. 604,
606, 38 C.M.R. 402, 404 (1968) (citing Rohlfing v. Moses
Akiona, Ltd., 369 P.2d 114, 116 (Haw. 1962)). Appellant’s
reliance on Robertson, moreover, is undermined by the con-
text of the language he cites. The Robertson court did opine
that panels should generally remain constant in member-
ship, but immediately went on to clarify:
Circumstances may, however, dictate otherwise, as
in the case at hand. Normally, should such an occa-
sion arise, jurisdiction is implicit. Thus, it is analo-
gously said:
“A rehearing will not be granted merely
because a change in the membership of the
court is about to take place or has already
occurred; nor will a rehearing be granted
because the judge writing the majority
opinion was not present or a member of
the court at the time of oral argument or
the submission of the cause.”
Id. at 606, 38 C.M.R. at 404 (emphasis added) (citations
omitted). Based on the cited authorities, Appellant con-
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Opinion of the Court
cludes, albeit incorrectly, that he has the right to have his
case reviewed by the same appellate judges who initially re-
viewed his case prior to our remand. Brief for Appellant at 6-
13, Shea, No. 16-0530 (C.A.A.F. Oct. 14, 2016).
The cases cited by Appellant interpreted a prior version
of Article 66, UCMJ, with respect to motions for reconsidera-
tion and en banc review. Appellant’s case concerns Article
66, UCMJ, but is procedurally different because it was re-
manded to the lower court after our initial review.
Accordingly, we conclude that when a case is being re-
viewed on remand, an accused does not possess a right to a
panel composed of the same appellate judges who originally
reviewed his case. We therefore hold that Appellant’s case
was properly remanded, assigned, and reviewed by the
AFCCA pursuant to Article 66, UCMJ.
II.
Turning to the unlawful command influence allegation,
we conclude that Appellant has not met his initial burden of
showing “some evidence,” of apparent unlawful influence.
United States v. Boyce, __ M.J. __ , __ (11) (C.A.A.F. 2017).
In order to raise the issue of apparent unlawful influence, an
accused must demonstrate the following: (a) facts, which if
true, constitute unlawful command influence; and (b) this
unlawful command influence placed an “intolerable strain”
on the public’s perception of the military justice system be-
cause “an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” Id. at __ (10) (in-
ternal quotation marks omitted) (citation omitted).
Appellant argues that apparent unlawful influence exist-
ed because Judge Hecker was inappropriately removed from
reviewing his case. Brief for Appellant at 9-11, Shea, No. 16-
0530 (C.A.A.F. Oct. 14, 2016) (citing United States v. Salyer,
72 M.J. 415, 428 (C.A.A.F. 2013) (holding that apparent un-
lawful influence exists where a military judge is removed
through the inappropriate actions of the government)). In
order to support this argument he alleges that the Judge
Advocate General specifically ordered Judge Hecker to per-
form duties that would force her to be removed from his
panel. Id.8
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Opinion of the Court
For reasons explained previously, the AFCCA did not in-
appropriately remove Judge Hecker from the panel review-
ing Appellant’s case. Article 66, UCMJ; A.F.C.C.A. R. 2.2(b);
see also Vines, 15 M.J. at 249. Additionally, it was well with-
in the Judge Advocate General’s authority to assign Judge
Hecker as the IMA to the JAJM of the AFLOA. 10 U.S.C. §
8037(c)(2) (2012); Vines, 15 M.J. 249. Neither action taken
by the chief judge or the Judge Advocate General was inap-
propriate, or unlawful.
Furthermore, Appellant did not present any evidence
that a plan or scheme to unlawfully remove Judge Hecker
existed. See generally Brief for Appellant at 1-13, Shea, No.
16-0530 (C.A.A.F. Oct. 14, 2016). Appellant speculates that
the AFCCA’s motives for removing Judge Hecker were sus-
pect based on the court’s failure to address the issue in its
order. Id. at 10-12. However, in a trial context, we have stat-
ed:
[T]here must be something more than an ap-
pearance of evil to justify action by an appellate
court in a particular case. “Proof of [command in-
fluence] in the air, so to speak, will not do.” We will
not presume that a military judge has been influ-
enced simply by the proximity of events which give
the appearance of command influence in the ab-
sence of a connection to the result of a particular
trial.
United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (al-
teration in original) (footnote omitted). Appellant’s specula-
tion in this case amounts to no more than a claim of com-
mand influence in the air. There is no regulation, statute, or
authority that requires the AFCCA to dictate their reason-
ing for a change in a panel’s composition. Vines, 15 M.J. at
248-49 (citing Article 66, UCMJ). 4
Accordingly, we hold that Appellant has failed to meet
his initial burden of showing some evidence of apparent un-
lawful command influence.
4 Although not required, it may be a better practice in such
cases to have the CCA’s chief judge or clerk of the court indicate
on the record the reason for a change in a panel’s composition to
avoid unnecessary litigation of the issue.
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Opinion of the Court
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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