United States v. Mar

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39708
________________________
UNITED STATES
Appellee
v.
Mamadou S. MAR
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 December 2020
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Military Judge: Jennifer E. Powell.
Sentence: Sentence adjudged 25 April 2019 by GCM convened at Nellis
Air Force Base, Nevada. Sentence entered by military judge on 19 May
2019: Bad-conduct discharge, confinement for 12 months, and reduction
to the grade of E-1.
For Appellant: Major Rodrigo M. Caruço, USAF; Major David A. Schia-
vone, USAF.
For Appellee: Major Anne M. Delmare, USAF; Mary Ellen Payne, Es-
quire.
Before J. JOHNSON, KEY, and MERRIAM, Appellate Military Judges.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
PER CURIAM:
A general court-martial composed of a military judge alone found Appellant
guilty, in accordance with his pleas and a pretrial agreement (PTA), of one
specification of dereliction of duty, two specifications of wrongful use of mari-
juana, two specifications of wrongful use of cocaine, one specification of wrong-
United States v. Mar, No. ACM 39708
ful use of psilocybin mushrooms, one specification of wrongful use of 3, 4-meth-
ylenedioxymethamphetamine (Ecstasy), one specification of wrongful distribu-
tion of marijuana, one specification of wrongful possession of marijuana, one
specification of solicitation, and one specification of breaking restriction, in vi-
olation of Articles 92, 112a, and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 892, 912a, 934. 1 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 16 months, and reduction to the grade of
E-1. Pursuant to the PTA, the convening authority reduced the period of con-
finement to 12 months.
Appellant originally submitted the case to this court on its merits, without
assignment of error. We subsequently specified two issues for briefing by coun-
sel for both parties. 2 However, we do not reach the specified issues here, but
1Unless otherwise noted, all references in this opinion to the Uniform Code of Military
Justice (UCMJ) and Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2016 ed.).
2 The specified issues were as follows:
I.
IN LIGHT OF RULE FOR COURTS-MARTIAL (R.C.M.) 705(C)(1)(B),
DID THE MILITARY JUDGE ERR WHEN SHE:
a. FAILED TO ADVISE APPELLANT THAT HIS AGREEMENT TO
“WAIVE ALL WAIVABLE MOTIONS” COULD NOT BE ENFORCED
TO PREVENT HIM FROM RAISING AN R.C.M. 707 SPEEDY TRIAL
MOTION;
b. IMPLIED THAT “IN ORDER TO GET THE BENEFIT” OF HIS
PRETRIAL AGREEMENT, APPELLANT HAD TO “GIVE UP MAK-
ING THESE MOTIONS,” WHICH INCLUDED AN R.C.M. 707
SPEEDY TRIAL MOTION; AND
c. ADVISED APPELLANT THAT HIS FAILURE TO “WAIVE ALL
WAIVABLE MOTIONS,” IMPLICITLY INCLUDING HIS R.C.M. 707
SPEEDY TRIAL MOTION, WOULD RESULT IN THE CANCELA-
TION OF HIS PRETRIAL AGREEMENT?
IF SO, IS APPELLANT ENTITLED TO RELIEF?
II.
DID APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN TRIAL DEFENSE COUNSEL FAILED TO SEEK
RELIEF FOR A POTENTIAL VIOLATION OF APPELLANT’S RIGHT
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United States v. Mar, No. ACM 39708
instead address an error in post-trial processing of Appellant’s court-martial:
whether the convening authority failed to take action on the sentence as re-
quired by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar.
2018), and Article 60, UCMJ, 10 U.S.C. § 860.
We find the convening authority failed to take action on the entire sentence
as he was required to do, and that remand to the Chief Trial Judge, Air Force
Trial Judiciary, is appropriate. Accordingly, we defer addressing the specified
issues until the record is returned to this court for completion of our Article 66,
UCMJ, review.
I. BACKGROUND
On 3 May 2019, Appellant requested clemency with respect to the adjudged
reduction in grade. On 13 May 2019, the convening authority issued a “Con-
vening Authority Decision on Action” (Decision on Action) to the military judge.
In the Decision on Action, the convening authority stated “I take no action on
the findings.” He also asserted that “[t]he period of confinement is reduced
from sixteen months to twelve months,” in accordance with the limitation con-
tained in the PTA. The Decision on Action also indicated Appellant would be
required to take appellate leave under Article 76a, UCMJ, 10 U.S.C. § 876a.
The Decision on Action did not comment further on Appellant’s sentence. Spe-
cifically, the Decision on Action contained no further indication as to whether
any other element of the sentence was approved, disapproved, commuted, or
suspended.
On 19 May 2019, the military judge signed the entry of judgment (EoJ)
accompanied by two attachments: (1) Statement of Trial Results (STR) dated
25 April 2019, and (2) the Decision on Action. We note the STR and EoJ in this
case erroneously indicate that Charge I constituted a violation of Article 86,
UCMJ, 10 U.S.C. § 886 when Charge I, and its two specifications, as reflected
on the charge sheet, alleged a violation of Article 92, UCMJ, 10 U.S.C. § 892.
II. DISCUSSION
Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citation omitted). Interpretation of a statute and a Rule for Courts-
Martial (R.C.M.) are also questions of law we review de novo. United States v.
TO SPEEDY TRIAL UNDER RULE FOR COURTS-MARTIAL 707? IF
SO, IS APPELLANT ENTITLED TO RELIEF?
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United States v. Mar, No. ACM 39708
Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008) (citation omitted); United States v.
Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005) (citation omitted).
Executive Order 13,825, § 6(b), requires that the version of Article 60,
UCMJ, 10 U.S.C. § 860in effect on the date of the earliest offense of which the accused
was found guilty, shall apply to the convening authority . . . to
the extent that Article 60: (1) requires action by the convening
authority on the sentence; . . . or (5) authorizes the convening
authority to approve, disapprove, commute, or suspend a sen-
tence in whole or in part.
See 2018 Amendments to the Manual for Courts-Martial, United States, 83
Fed. Reg. at 9890. The version of Article 60, UCMJ, in effect on the date of the
earliest charged offense for which Appellant was found guilty, 1 December
2017, stated “[a]ction on the sentence of a court-martial shall be taken by the
convening authority or by another person authorized to act under this section.”
10 U.S.C. § 860(c)(2)(A) (emphasis added); see also United States v. Perez, 66
M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is re-
quired to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ, further
stated: “Except as [otherwise] provided . . . the convening authority . . . may
approve, disapprove, commute, or suspend the sentence of the court-martial in
whole or in part.” 10 U.S.C. § 860(c)(2)(B). The convening authority’s action is
required to be “clear and unambiguous.” United States v. Politte, 63 M.J. 24,
26 (C.A.A.F. 2006) (citation omitted).
Several panels of our esteemed colleagues on this court have addressed the
effect of a convening authority’s failure to take complete action on a sentence
where at least one offense predates 1 January 2019, but the court-martial and
post-trial processing occur after 1 January 2019. See, e.g., United States v.
Lopez, No. ACM S32597, 2020 WL 7233070, at *5 (A.F. Ct. Crim. App. 8 Dec.
2020) (unpub op.) (holding “failure to take action on the entire sentence fails to
satisfy the Article 60, UCMJ (2016 MCM), requirement” and therefore “the
record should be remanded”); United States v. Barrick, No. ACM S32579, 2020
CCA LEXIS 346, at *3 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.) (holding
convening authority’s decision to take no action was the equivalent of action);
and United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *15
(A.F. Ct. Crim. App. 27 Jul. 2020) (holding convening authority failure to take
action on sentence was plain and obvious error, but not prejudicial to appel-
lant).
This court’s recent en banc decision in United States v. Aumont, No. ACM
39673, 2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (un-
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United States v. Mar, No. ACM 39708
pub. op.), reveals four distinct positions among the judges of this court. In Au-
mont, no single legal rationale regarding the effect of a convening authority
taking “no action” was adopted by a majority of this court. Four judges held in
two separate opinions that the convening authority’s decision to “take no ac-
tion” on sentence was not error. Id. at *4; id. at *38–40 (Posch, S.J., concurring
in part and in the result). Two judges found error, but concluded the appellant
in that case was not prejudiced by the error. Id. at *36 (Lewis, S.J., concurring
in part and in the result). Finally, four judges found a convening authority
taking no action on sentence to be error, and would have remanded without
testing for prejudice. Id. at *91–92 (J. Johnson, C.J., concurring in part and
dissenting in part).
We conclude the convening authority’s failure to take action on the entire
sentence fails to satisfy the requirement of the applicable Article 60, UCMJ.
Prior to 1 January 2019, the convening authority was required to explicitly
state his approval or disapproval of the sentence. See United States v. Wilson,
65 M.J. 140, 141 (C.A.A.F. 2007) (citing R.C.M. 1107(d)(1)). “If only part of the
sentence is approved, the action shall state which parts are approved.” Id.(quoting R.C.M. 1107(f)(4)(A)). In this case, the convening authority’s action on
sentence reduced total confinement, implicitly referenced the possibility of a
punitive discharge through mentioning appellate leave, and failed altogether
to mention the reduction in grade, the only part of the sentence for which Ap-
pellant requested clemency. The convening authority’s action was incomplete
and ambiguous, and therefore deficient. See Politte, 63 M.J. at 26. 3
Our superior court has mandated that when a Court of Criminal Appeals
identifies an ambiguity in an action, we must return the case to the convening
authority. Politte, 63 M.J. at 27 (applying the earlier versions of Articles 60
and 66, 10 U.S.C. §§ 860, 866 (2000)). In requiring the deficient action to be
returned to the convening authority, our superior court did not evaluate the
deficiency for prejudice; the deficiency in the action ipso facto required its re-
turn. Id.; see also United States v. Scott, 49 M.J. 160, 160 (C.A.A.F. 1998). For
the reasons set forth by the majority in Lopez and in the dissenting opinion in
Aumont, we find the record should be remanded to the Chief Trial Judge, Air
Force Trial Judiciary, to resolve the error. See Article 66(f)(3), UCMJ, 10 U.S.C.
§ 866(f)(3) (Manual for Courts-Martial, United States (2019 ed.) (2019 MCM).
3 As in Aumont, the convening authority’s memorandum suggests the requirement to
take action on the entire sentence was overlooked, further suggesting Appellant’s case
was processed entirely under the new Article 60 and Article 60a, UCMJ, and associated
R.C.M.s. Aumont, unpub. op. at *104.
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United States v. Mar, No. ACM 39708
III. CONCLUSION
This case is REMANDED to the Chief Trial Judge, Air Force Trial Judici-
ary, to resolve a substantial issue with the convening authority’s decision mem-
orandum as the action taken on Appellant’s adjudged sentence was ambiguous
and incomplete.
Our remand returns jurisdiction over the case to a detailed military judge
and dismisses this appellate proceeding consistent with Rule 29(b)(2) of the
Joint Rules for Appellate Procedure for Courts of Criminal Appeals. JT. CT.
CRIM. APP. R. 29(b)(2). A detailed military judge may:
(1) Correct the Statement of Trial Results;
(2) Return the record of trial to the convening authority or his suc-
cessor to take action on the sentence;
(3) Conduct one or more Article 66(f)(3), UCMJ (2019 MCM), pro-
ceedings using the procedural rules for post-trial Article 39(a),
UCMJ, sessions; and/or
(4) Correct or modify the Entry of Judgment.
Thereafter, the record of trial will be returned to the court for completion
of appellate review under Article 66, UCMJ.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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