UNITED STATES, Appellee v. Lamont S. JESSIE, Chief Warrant Officer Two United States Army, Appellant
No. 19-0192
Crim. App. No. 20160187
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Argued November 5, 2019—Decided April 6, 2020
Military Judge: Rebecca K. Connally
For Appellant: Captain Zachary A. Gray (argued); Lieutenant Colonel Christopher D. Carrier, Lieutenant Colonel Tiffany D. Pond, and Captain Benjamin A. Accinelli (on brief); Lieutenant Colonel Todd W. Simpson, Captain Joseph C. Borland, and Captain Heather M. Martin.
For Appellee: Captain Christopher T. Leighton (argued); Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, and Major Hannah E. Kaufman (on brief); Major Marc B. Sawyer.
Judge MAGGS delivered the opinion of the Court, in which Chief Judge STUCKY and Judge RYAN joined. Judges OHLSON and SPARKS filed separate dissenting opinions.
Judge MAGGS delivered the opinion of the Court.
A general court-martial found Appellant guilty, contrary to his pleas, of two specifications of sexual assault of a child of twelve years or older, but under the age of sixteen, one specification of conduct unbecoming an officer, and one specification of adultery in violation of
On appeal, Appellant asked the U.S. Army Court of Criminal Appeals (ACCA) to reduce his sentence on the grounds that the visitation rules at his confinement facility violated his First and Fifth Amendment rights by depriving him of all direct and indirect contact with his biological children. United States v. Jessie, No. ARMY 20160187, 2018 CCA LEXIS 609, at *2, 2018 WL 6892945, at *1-2 (A. Ct. Crim. App. Dec. 28, 2018) (en banc). The ACCA, with ten judges sitting en banc, concluded that it had no obligation to review Appellant‘s constitutional challenges and that considering them would be inappropriate.1 Id. at *18-19, 2018 WL 6892945, at *7-8. Four of the ten judges dissented. Id. at *25, 2018 WL 6892945, at *9-10.
We granted Appellant‘s petition to determine whether
I. Background
While temporarily living in the household of a close friend and her family, Appellant engaged in sexual misconduct. The victim of this misconduct was one of his friend‘s daughters,
Appellant began serving his approved sentence of confinement at the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, in March 2016. At the time, the JRCF‘s visitation policy for child sex offenders such as Appellant was Military Correctional Complex Standard Operating Procedure 310 (SOP 310). This policy, which the JRCF has since amended,3 required “inmates who committed sexual offenses with minor children not to have written, telephonic, or in-person contact with any minor child without prior approval by the [facility‘s commander].”
In March and June 2017, Appellant asked the confinement facility‘s commander for permission to communicate with his biological children, who at the time were under the age of eighteen. The commander denied both requests. The commander explained that to obtain approval for communication with minor children under SOP 310 an inmate had to complete a sex offender treatment program. And to be eligible for this program, the inmate had to accept responsibility for committing the offenses for which he was confined. Because the confinement facility determined that Appellant did not accept responsibility, he could not participate in the program and, therefore, he could not obtain the commander‘s approval.
On appeal, Appellant asked the ACCA to use its authority under
The ACCA assumed for the purposes of the appeal that SOP 310 effectively prevented Appellant from having contact with his biological children between March 2016 and November 2018 and that Appellant had exhausted all administrative means of challenging SOP 310. The ACCA, however, determined that it had no obligation to consider Appellant‘s First and Fifth Amendment claims when assessing his sentence. The ACCA further decided that if it had authority to consider the constitutional claims, it would be inappropriate to do so.5 The ACCA therefore did not address the merits of Appellant‘s claims in conducting its review under
II. Whether the ACCA Conducted a Proper Review of Appellant‘s Sentence
Assigned Issue II asks whether the ACCA conducted a proper review of Appellant‘s sentence under
Answering the question of whether a Court of Criminal Appeals (CCA) may consider materials outside the record
A. Article 66(c), UCMJ
In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
Our cases addressing the scope of the CCAs’ review of sentences under
Second are the words specifying that a CCA may affirm only so much of a sentence as it “determines . . . should be approved.” Pursuant to these words, a CCA may not affirm any portion of a sentence that it finds excessive. See United States v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010). Accordingly, the CCAs have “broad discretionary power to review sentence appropriateness.” United States v. Kelly, 77 M.J. 404, 405 (C.A.A.F. 2018).
Third are the words specifying that a CCA must review the sentence “on the basis of the entire record.” In Fagnan, this Court construed the phrase “entire record” to include the “record of trial” and “allied papers.” 12 C.M.A. at 194, 30 C.M.R. at 194. Under the Rules for Courts-Martial (R.C.M.) applicable to this case, the “record of trial” contains all of the items listed in R.C.M. 1103(b)(2), and the “allied papers” are items now identified as “matters attached to the record” in accordance with R.C.M. 1103(b)(3).6 In addition, the “entire record” also includes briefs and arguments that government and defense counsel (and the appellant personally) might present regarding matters in the record of trial and “allied papers.” See United States v. Healy, 26 M.J. 394, 396 (C.M.A. 1988).
B. Precedents Restricting the CCAs to Reviewing Materials Included in the “Entire Record”
Strictly following the text of
Fagnan established a clear rule that the CCAs may not consider anything outside of the “entire record” when reviewing a sentence under
The rule in Fagnan does not preclude the CCAs from considering prison conditions when reviewing a sentence under
Similarly, in United States v. White, the appellant claimed that confinement officials violated the prohibition against cruel and unusual punishment in the Eighth Amendment and
C. Precedents Allowing the CCAs to Supplement the Record in Resolving Issues Raised in the Record
This Court has never overruled Fagnan and has continued to cite the decision in recent years. See, e.g., United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (following Fagnan on the issue of what constitutes the “entire record” under
For example, in Brennan, the appellant sought sentence relief before the CCA on grounds that she had suffered sexual assaults and harassment during her post-trial confinement. 58 M.J. at 352. The appellant initially complained about this mistreatment in her submissions to the convening authority. Id. On appeal to the CCA, she also submitted an affidavit containing additional details. Id. at 353. The CCA and later this Court both considered the affidavit even though it was not part of the entire record. Id. This Court has similarly allowed a CCA to accept affidavits or order a DuBay hearing when necessary for resolving claims of ineffective assistance of trial defense counsel and a wide variety of other issues when those claims and issues are raised by the record but are not fully resolvable by the materials in the record. See, e.g., United States v. Parker, 36 M.J. 269, 272 (C.M.A. 1993) (listing examples of issues in which DuBay hearings have been ordered for gathering additional facts on appeal).
These precedents are not strictly consistent with Fagnan and
D. Precedents Allowing the CCAs to Consider Matters Entirely Outside the Record
A third class of precedents, however, has gone further and allowed the CCAs to consider materials outside the “entire record” when reviewing issues that were not raised by anything in the record. The clearest example is Erby. The appellant in that case asserted that prison officials severely harassed him when he first arrived at the confinement facility to serve his sentence. 54 M.J. at 477. He asked the CCA for relief, arguing that his confinement conditions subjected him to cruel and unusual punishment. Id. The CCA held that “it had no authority to review [the] appellant‘s complaint because the mistreatment was not a part of the approved sentence, nor was it raised in [the] appellant‘s clemency request to the convening authority.” Id. This Court reversed the CCA, holding that the CCA erred in concluding that it lacked authority to review the claims. Citing White, the Court held that the CCA has a duty to determine whether a sentence is “correct in law,” which “includes authority to ensure that the severity of
A similar decision is United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007). In Pena, the appellant was convicted of sex-related offenses. Id. at 261. A clemency and parole board ordered him to participate in a rigorous supervised release program for seventy-two days, ending on the last day of his approved sentence of confinement. Id. at 263. The appellant argued on appeal to this Court that this requirement constituted cruel and usual punishment, unlawfully increased the punishment to which he had been sentenced, and rendered his guilty plea improvident. Id. at 264. The CCA determined that it had jurisdiction to consider the appellant‘s allegations regarding the release program but denied him relief on the merits. United States v. Pena, 61 M.J. 776, 777-78 (A.F. Ct. Crim. App. 2005). This Court affirmed, determining that the appellant had not presented sufficient proof to warrant relief. The Court explained:
When an appellant asks us to review the post-trial administration of a sentence, we are typically confronted by issues in which the pertinent facts are not in the record of trial. In such a case, it is particularly important that the appellant provide us with a “clear record” of the facts and circumstances relevant to the claim of legal error.
64 M.J. at 266. This statement is inconsistent with Fagnan in that it contemplates that a CCA may consider materials outside the “entire record” when conducting a review under
E. Reconciling and Applying the Conflicting Precedents
The foregoing discussion raises the question of how to reconcile the three categories of cases. The government argues that we can accommodate their discord by ruling that CCAs may consider materials outside the entire record only when assessing cruel and unusual punishment claims, such as
Looking carefully at all of these cases, we do not see a good reason for disagreeing with Fagnan.9 The second sentence of
We also see no reason, in this case, to reconsider the second category of precedents described above. Those precedents have created an exception to Fagnan by allowing courts to consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record. In the present case, Appellant did not present any claim regarding confinement facility policies in his submissions to the convening authority. Accordingly, nothing in the record raises an issue regarding those policies. The precedents in the second category, accordingly, have no bearing on this case.
This leaves only the question whether, in this case, we should extend the third category of precedents. As described above, Erby and Pena allowed appellants to raise and present evidence of claims of cruel and unusual punishment and violations of
Applying Fagnan now, we start by recognizing that the “entire record” contains no information about SOP 310 or the application of the policy to Appellant. Neither the record of
Three important observations about our holding and reasoning require attention. First, our decision today cabins but does not overrule Erby or Pena, with respect to
Second, this decision does not overrule, call into question, or otherwise affect Brennan or any other decision in the second category of cases described above. Those decisions are distinguishable because they concerned issues raised by materials in the record but not fully resolvable by those materials. Those decisions also could not be easily cabined because they have not been as limited in their subject matter as decisions in the third category of cases, which have concerned only Eighth Amendment and
Third, we note that the parties and the ACCA have discussed a number of competing policy arguments. For example, among other considerations, the majority of the ACCA observed that inmates generally have other venues, such as
We take no position with respect to any of these competing policy arguments. We think policy arguments should not guide our decision in this case because the text of
III. Conclusion
We have answered Assigned Issue II in the affirmative by concluding that the ACCA conducted a valid review under
The decision of the United States Army Court of Criminal Appeals is affirmed.
The majority holds that when a Court of Criminal Appeals (CCA) is fulfilling its statutory responsibilities under
The majority squarely roots its holding in this case on the wording of
To begin with, the reference in
Next, I conclude that the majority‘s reliance on Fagnan as controlling precedent is misplaced. To be clear, if Fagnan stood alone as the only case to address this issue, I would likely agree with the majority‘s conclusion. But as the majority admirably recounts in its own opinion, that is hardly the situation.
For example: In United States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003), the appellant sought sentence relief based on her post-trial confinement conditions, and this Court considered the appellant‘s affidavit on this topic even though it had not been submitted to the convening authority and was not part of “the entire record.” In United States v. Parker, 36 M.J. 269, 272 (C.M.A. 1993), this Court noted that we have authorized post-trial hearings pursuant to United States v. DuBay, 17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967), “in a growing miscellany of circumstances where extra-record fact determinations were necessary predicates to resolving appellate questions.” In United States v. Boone, 49 M.J. 187, 193 (C.A.A.F. 1998), the appellant raised an ineffective assistance of counsel claim, and this Court noted that “there are legitimate and salutary reasons for the now-Court of Criminal Appeals to have the discretion to obtain evidence by affidavit, testimony, stipulation, or a factfinding hearing, as it deems appropriate.” In United States v. Erby, 54 M.J. 476, 479 (C.A.A.F. 2001), the appellant sought sentence relief based on his post-trial confinement conditions, and this Court remanded the case to the CCA for “whatever factfinding is required . . . [in order to] review the merits of appellant‘s claims under
When an appellant asks us to review the post-trial administration of a sentence, we are typically confronted by issues in which the pertinent facts are not in the record of trial. In such a case, it is particularly important that the appellant provide us with a “clear record” of the facts and circumstances relevant to the claim of legal error.
64 M.J. at 266 (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
In reviewing this caselaw which is not consistent with our decision in Fagnan, the majority decides to hew to our holding in the latter case. I disagree with this approach for the reasons cited below.
First, Fagnan, which was decided nearly sixty years ago, conflicts with more recent precedent. As this Court recently stated in United States v. Hardy, “When confronted with conflicting precedents, [this Court] generally follow[s] the most recent decision.” 77 M.J. 438, 441 n.5 (C.A.A.F. 2018).
Second, there is not just one case that conflicts with the older Fagnan case—there are several. When it comes to a duel of precedents, not only recency but also frequency surely should play a role.
Third, unlike at the time of the Fagnan decision, a number of federal circuit courts have now determined that they have the authority to supplement the record on appeal in special circumstances. See, e.g., United States v. Rothbard, 851 F.3d 699, 702 (7th Cir. 2017) (supplementing the record to address the reasonableness of the district court‘s sentence); 16A Charles Alan Wright et al., Federal Practice and Procedure § 3956.4 (5th ed. 2019). Given this federal civilian practice, the judicial nature of the CCAs would support, not preclude—as suggested by Fagnan—supplementation of the record on appeal in appropriate instances. This is especially true in light of the fact that the CCAs are unique appellate courts with “unrivaled statutory powers.” United States v. Kelly, 77 M.J. 404, 405 (C.A.A.F. 2018). Their “scope of review . . . differs in significant respect from direct review in the civilian federal appellate courts” to include that a CCA “conducts a de novo review of the sentence under Article 66(c) as part of its responsibility to make an affirmative determination as to sentence appropriateness.” United States v. Roach, 66 M.J. 410, 412 (C.A.A.F. 2008).
Fourth, unlike in the federal civilian court system, there is “no mechanism set out in the Uniform Code of Military Justice for this Court or the [CCAs] to evaluate . . . post-conviction claims,” and thus DuBay hearings—which were adopted more than fifty years ago—have “proved to be a useful tool” in this regard. United States v. Polk, 32 M.J. 150, 152-53 (C.M.A. 1991). In other words, the military justice system does not have a procedure in place, such as in the federal civilian court system, where collateral litigation is used to address claims that cannot be resolved on the basis of the material already contained in the record. DuBay hearings help to fill that role. This process has a long history in the military, is not unduly burdensome, can provide adequate relief to aggrieved servicemembers in a timely manner under a host of circumstances, and can keep the issue “in house” rather than requiring the servicemember to resort to the civilian legal system to vindicate his or her rights that were allegedly violated by the military.1 And yet, despite the multitude of cases over more than fifty years where the CCAs and this Court have employed this procedure, the majority explicitly notes that in a future case it may seek to overturn long-standing precedent and thereby further limit an appellant‘s ability to supplement the record—even in those instances where the alleged violation of rights
We may decide in a future case whether these holdings with respect to such claims [i.e., whether precedents authorizing the supplementation of the record—such as through DuBay hearings—in those cases where Article 55, UCMJ, and Eighth Amendment claims are raised,] should be overruled, modified, or instead allowed to stand as “aberration[s]” that are “fully entitled to the benefit of stare decisis” because they have become established. Flood v. Kuhn, 407 U.S. 258, 282 (1972).
Jessie, ___ M.J. at ___ (14) (second alteration in original). This is an ominous pronouncement.2
Fifth, the rationale of the majority opinion brings into question the validity of this Court‘s own rules and practices. Specifically,
In light of these factors, I conclude that the majority is mistaken in concluding that the CCA was prohibited from considering the materials submitted by Appellant regarding the conditions of his post-trial confinement. Indeed, in regard to the disposition of the instant case, I would remand the case
I agree with the majority‘s assessment of the three different lines of precedent related to the court of criminal appeals’ consideration of materials outside the record as part of an
United States v. Fagnan, 12 C.M.A. 192, 194, 30 C.M.R. 192, 194 (1961), is nearly sixty years old and involves an appellant‘s request for what is essentially clemency, a reduction of his sentence based on good behavior. I am reluctant to use this as the basis for denying a more liberal interpretation of “the entire record” in cases following in the footsteps of United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001), and United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), which raised serious questions of sentence appropriateness rather than just clemency. The majority is correct that
Sentence appropriateness is a somewhat fluid issue. It is conceivable that sentencing issues could arise or ripen or come to defense counsel‘s attention only after the convening authority has acted. To my mind, the courts of criminal appeals are bound, under
Though the majority opinion is clear about its narrow application, I nonetheless have concerns that, if we rely here upon a literal interpretation of the phrase “on the basis of the entire record,” nothing in
Given these concerns, I respectfully dissent.
Notes
- Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant‘s confinement conditions.
- Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant‘s constitutional claims.
- Whether Appellant‘s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.