Case Information
*1
BAUM, Chief Judge:
Background
On 27 June 2001, a panel of this Court affirmed the findings of guilty in this case and
only so much of the sentence approved below as provided for twenty-eight months confinement.
In so doing, two of the panel judges expressly disapproved a bad conduct discharge (BCD) and a
reduction to paygrade E-1, after determining that, under all the circumstances of the case, those
sentence components should not be approved. The circumstances of particular concern to the
Court related to Appellant’s subsequent conviction and sentence by a South Carolina state court
for offenses based on the same misconduct. Information concerning that trial was placed in the
record by Appellant’s trial defense counsel in a clemency petition addressed to the convening
authority in accordance with Rule for Courts-Martial (RCM) 1105. It was also brought to this
* Judge Kantor recused himself from this decision, and Judge Bruce did not participate because he was the trial
judge below.
United States v. Hutchison
,
Court’s attention specifically by Appellant’s assertion pursuant to United States v. Grostefon , 12 M.J. 431 (CMA 1982), that he had been subjected to double jeopardy in violation of the Fifth Amendment. We rejected that assertion, but other issues inherent in his Grostefon filing prompted us to order more information from the parties concerning the state trial and the events leading up to the court-martial, to determine whether Coast Guard prosecution constituted a violation of the policy articulated in the Manual for Courts-Martial (MCM) and the Coast Guard’s Military Justice Manual (MJM) against trial by court-martial when a state trial for the same acts is pending. We also sought more information concerning the state trial sentence based on questions generated by oral argument.
Documents and briefs by the parties revealed that permission for trial by court-martial had been sought and granted, as required by the MJM. However, despite ostensible compliance with that Manual, two of the panel judges determined that the double punishment effect from the state trial warranted a lesser court-martial sentence in the interests of justice and fairness. Accordingly, after considering all the circumstances of the case, the Court, in furtherance of its responsibilities under Article 66(c), UCMJ, to affirm “only such . . . amount of the sentence, as it . . . determines, on the basis of the entire record, should be approved,” affirmed only the twenty- eight months confinement. One judge dissented from this sentence action. Afterwards, in response to a motion by the Government, the Court, on 9 August 2001, ordered reconsideration of its earlier decision, to be heard by the Court sitting as a whole. In taking this action, the Court determined that there were questions of exceptional importance inherent in its earlier decision, specifically, its authority to review a decision by the Coast Guard to court-martial Appellant while a state trial was pending for the same acts, and its authority to consider the results of that review, as well as the state court’s findings and sentence, in determining a sentence that should be approved pursuant to Article 66 of the Uniform Code of Military Justice (UCMJ).
I. Issues for Reconsideration
a. Sentence Appropriateness Determination by a Panel
The Government has not dealt directly with the particular questions posed in our reconsideration order, concentrating instead on arguing that the sentence approved by a panel of this Court was inappropriate and that the en banc Court should replace that approved sentence with one that includes a BCD. Before proceeding further, we want to make it clear that we did not grant reconsideration in order to revisit the earlier sentence determination. At least one of our higher court’s judges, former Chief Judge Everett, has expressed the view that it is not even within our power to do that. In discussing the 1983 amendment to Article 66(a), UCMJ, which authorized en banc reconsideration of a panel decision, Chief Judge Everett had this to say:
In view of the purposes of this amendment – to resolve differences as to legal issues – I do not believe that it confers upon the Court of Military Review [now the Court of Criminal Appeals] the power to reconsider en banc a factual finding or a determination of sentence appropriateness made by a panel. Instead, only the panel’s conclusions of law may be reconsidered.
United States v. Flowers
,
b. Authority to Review Both the Decision to Court-Martial Appellant
And the Action by the State
The Government has asserted two legal issues: that the Court exceeded its authority by improperly relying on matters outside the record and by exercising clemency rather than determining sentence appropriateness under Article 66(c), UCMJ. These contentions will be addressed, but first, the questions posed in our reconsideration order need to be resolved. Does this Court have authority to review the Coast Guard’s decision to court-martial Appellant while a state trial was pending for the same acts, and, if such a review is proper, may the Court consider the results of that review, as well as the state court’s findings and sentence, in the course of meeting its sentence approval responsibilities pursuant to Article 66, UCMJ? As to the first question, we hold that this Court has authority under Article 66(c), UCMJ, to review the decision to court-martial Appellant while a state trial was pending. As part of our responsibility to assure that the findings and sentence are correct in law and fact, such a review is necessary in order to determine whether the decision to try Appellant by court-martial comported with policy and procedural requirements in the Manual for Courts-Martial and Coast Guard Military Justice Manual. We further hold that the facts developed by that review, including the state court’s findings and sentence, if properly a part of the entire record, may be considered by this Court when determining a sentence that should be approved pursuant to Article 66(c), UCMJ. c. Matters Properly in the Record
The Government contends that the information concerning Appellant’s state criminal
proceedings constitutes extra-record material not relevant to his court-martial, and, therefore,
beyond our authority to consider in approving a sentence. Indeed, it is a given that our sentence
determination under Article 66(c), should be based on matters in the record, not outside.
Guidance on what is in the record for purposes of determining an appropriate sentence is
provided in
United States v. Healy
,
d. Clemency or Sentence Appropriateness
The remaining assertion by the Government, that this Court improperly engaged in clemency action rather than a determination of sentence appropriateness under Article 66, UCMJ, requires a closer look at the holding in United States v. Healy , supra , from the perspective of earlier opinions on this subject. Healy held that our military appellate courts may refuse to consider evidence proffered for consideration in determining the sentence to be approved, if that evidence relates to clemency. In reaching its decision that the Air Force Court had not erred in denying a defense motion to attach twenty-five letters recommending a reduction of confinement, the Court of Military Appeals distinguished between sentence appropriateness determinations, which courts perform, and clemency actions that Congress left to others. The Court of Military Appeals held that the Air Force Court of Military Review was within its authority to deny attachment to the record of documents it saw as oriented towards clemency rather than sentence appropriateness. The Court did not hold, or even intimate, that a court of military review was precluded from a sentence action with attributes of clemency, if that action was properly based on information within the entire record.
Most importantly, the
Healy
decision did not overrule, or modify in any way,
United
States v. Lanford
,
Conclusion
Upon reconsideration, this Court’s decision of 27 June 2001 is reaffirmed. In taking this
action, we are fully cognizant of a misstatement by the staff judge advocate in his
recommendation to the convening authority that the sentence included forfeiture of all pay and
allowances, and that this erroneous statement of that sentence element was carried over in the
court-martial order that was issued. The sentence did not include forfeitures of any amount.
Accordingly, a supplementary court-martial order should be issued by appropriate authority
reflecting the correct adjudged sentence. It is also noted that the record does not reflect
compliance with
United States v. Craig
,
KILROY, Judge, concurring in part and dissenting in part:
I agree with the majority that it would, unfortunately, be inappropriate for the Court to reconsider a prior panel’s sentence determination simply because we disagree with that assessment. I also agree that this Court has authority under Article 66(c) to review the decision to court-martial Appellant while a state court trial is pending, to determine whether that decision comported with Coast Guard policy and procedural requirements. I disagree, however, with the majority’s holding that a state court sentence arising from the same acts that previously resulted in the announcement of a court-martial sentence may be considered by a court of criminal appeals in determining the appropriateness of that court-martial sentence.
We held in our prior consideration of this case that, despite a pending state prosecution
arising out of the same misconduct, Appellant’s court-martial had proper jurisdiction to proceed.
United States v. Hutchison
,
Having held that Appellant’s court-martial accorded with both law and Coast Guard policy, we nevertheless went on to lessen the court-martial sentence as an exercise of our Article 66(c) sentence appropriateness authority. We did this because we were “concerned that Appellant was tried and punished twice for the same acts.” I believe that our consideration of the subsequent action by the state in this case violated fundamental notions of federalism, and that our prior decision therefore cannot stand.
“Federalism” precludes equitable intervention by federal courts in state court
proceedings.
Younger v. Harris
,
In our prior decision, we did not opine that the punishment adjudged at court-martial was
unjust. In fact, we noted that “[n]ormally, a punitive discharge and reduction in paygrade [sic]
would appear to us as appropriate sentence elements for the kind of offenses committed by
Appellant.”
Our invocation of
United States v. Pierce,
Appellant, to his misfortune, committed his crimes in a state whose criminal justice authorities were not satisfied by the court-martial result. The state prosecutor and judge were both aware of the prior results of Appellant’s court-martial. R. at Gov’t Mot. Recons. With knowledge of the sentence adjudged at court-martial, the state prosecutor sought, and the state judge imposed, additional punishment that they determined to be appropriate. We should also recognize that the state legislature knows how, if it so desires, to limit the authority of its prosecutors to pursue the punishment of acts that have led to prior punishment by another sovereign. See S.C. Code Ann. § 44-53-410 (Law. Co-op. 1971) (barring prosecution for narcotics offenses if the same act has previously led to conviction or acquittal under federal law or the law of another state).
In spite of these facts, we exercised our Article 66(c) power to limit, in effect, the state’s
exercise of its own criminal justice jurisdiction. At that point, of course, the state lacked any
power to offset our explicit “lessening” of the effect of its punishment. So denying a state its full
power to enforce criminal law because a convening authority has “won the race to the
courthouse,”
Heath v. Alabama
,
In light of the foregoing discussion, I would determine anew what sentence, or part thereof, should be approved pursuant to Article 66(c), UCMJ, without considering the subsequently imposed state sentence. I would then agree with the majority in our prior decision of this case that “no other basis . . . warrants setting aside the findings and sentence. . . .” 55
M.J. at 581.
For the Court, Kevin G. Ansley Clerk of the Court
Notes
[2]
United States v. Hutchison
,
[3] When considering this material of record earlier, a mistaken reliance on an erroneous assertion and a misreading of the state court’s action resulted in misstatements in the previous opinion as to the timing of the state trial and the sentence from that court. The state trial was held approximately two months after Appellant’s court-martial, not two weeks, as we indicated, and the sentence imposed by the state court was suspended in its entirety, not in part, as previously stated. Despite the misstatement as to the state sentence, the prior decision was rendered with the understanding of the panel that Appellant had not served any confinement adjudged by the state and would not serve any of that confinement unless the suspension was subsequently vacated. Neither misstatement had an effect on the sentence decision of the Court.
[4] This outlook is echoed by Judge Brosman in his
Lanford
concurring opinion:
As the Chief Judge has observed, a distinction has long been drawn between the taking of steps to rectify
inappropriateness of sentence, on the one hand, and, on the other, clemency action. . . . Yet, as I have
previously pointed out, it is frequently almost impossible to differentiate between the two sorts of action.
See, e. g., my concurring opinion in
United States v Coulter
,
[5]
Cf. Houston v. Moore
,