United States v. Moss
2014 CAAF LEXIS 100
| C.A.A.F. | 2014Background
- PFC Amanda Moss absented herself from her unit for ~3 years, was apprehended, returned, charged with desertion, absented again before trial, and was tried in absentia at a special court-martial.
- At sentencing, trial defense counsel gave an unsworn statement on Moss’s behalf without evidence Moss consented; the government rebutted part of that statement.
- Moss completed a "Post Trial and Appellate Rights Advisement" before trial, circled that she wanted appointed appellate counsel before the Army Court of Criminal Appeals (ACCA), and acknowledged she could petition the Court of Appeals for the Armed Forces (CAAF).
- The ACCA automatically reviewed and affirmed; appointed appellate counsel filed a petition to CAAF without a signed, explicit authorization from Moss; ACCA mailings about CAAF petition forms were returned undeliverable.
- At oral argument CAAF asked whether Moss personally authorized the petition; appellate counsel conceded he had not obtained express authorization and argued the rights advisement and his continuing duty implied authorization.
- CAAF held the decision to appeal to CAAF is personal, the record lacked Moss’s authorization to petition CAAF, and because Article 67(a)(3) requires a petition of the accused, CAAF dismissed the petition for lack of statutory jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the decision to appeal to CAAF is a personal decision and how it may be made | Moss: decision is personal; implied authorization insufficient | Gov/Moss (argued below): rights advisement and request for ACCA counsel implied authorization to pursue further appeals | Decision is personal; implied authorization in rights form does not suffice |
| Whether the record shows Moss authorized appeal to CAAF | Appellate counsel: rights advisement and ACCA representation show intent | Appellate counsel conceded no signed or verbal authorization was obtained; ACCA mail was returned | No evidence Moss personally authorized the CAAF petition; record lacks authorization |
| Whether appellate defense counsel had a continuing duty to pursue CAAF petition absent appellant authorization | Appellate counsel: duty to continue representation under Article 70 and Army rules; should preserve appeals | Government: counsel’s duty limited to authority given by client (ACCA only); cannot extend to CAAF absent authorization | Counsel’s continuing duty was limited to ACCA representation; absent personal authorization counsel should not file CAAF petition |
| What to do when appellant cannot be located within Article 67 time limits | Appellate counsel: should file to protect client’s interests; implied authorization adequate | Government: if client not located, counsel should act within previously given authority; cannot assume authorization for additional forums | If appellant cannot be located, counsel may only act within previously granted authority; absent express authorization CAAF lacks jurisdiction under Article 67(a)(3) |
Key Cases Cited
- Florida v. Nixon, 543 U.S. 175 (2004) (an accused has ultimate authority to make certain fundamental choices in criminal proceedings)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Ortega-Rodríguez v. United States, 507 U.S. 234 (1993) (fugitive disentitlement doctrine permits dismissal of appeals by fugitives under certain circumstances)
- United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009) (Article 67 requires both a petition of the accused and good cause shown for CAAF review)
- United States v. Daly, 69 M.J. 485 (C.A.A.F. 2011) (questions of law reviewed de novo)
- United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006) (when record evidence is complete, authorization disputes reduce to legal questions)