United States v. Lopez de Victoria

Appellee, STATES, UNITED VICTORIA, Sergeant, de

Eric LOPEZ Army, Appellant.

U.S.

No. 07-6004.

Crim.App. No. 20061248. Court of

the Armed Forces.

Argued Nov. 26, 2008.

Decided Feb. Appellant: Captain

For Nathan J. Bank- (argued); Christopher son Colonel J. O’Brien, Hen- Colonel Steven C. Lieutenant (on ricks, L. Major Raymond Teresa brief); Major FansuKu. Appellee: Captain Leary P.

For James II, (argued); W. Lieu- Colonel John Miller Cap- Haight, P. tenant Colonel Steven (on brief). Larry Downend tain W. Appellee: Amicus Ger- Curiae Colonel Major R. ald Bruce and Matthew S. Ward brief). (on 68 Captain Timothy retroactively

Amicus of the to Curiae: M. Cox UCMJ did not extend brief)- (on Captain Anthony and D. Ortiz offenses committed before the date of the Finding

amendment. si- was lent on 2003 to whether the amendment was Judge opinion STUCKY delivered the of applied retroactively, be he ruled that in the Court. unequivocal absence of a and “clear declara- granted We this review case to consider tion” of it application, only such could be whether the November 2003 amendment to applied prospectively. judge The military limitations, 43(b), the statute of Uni- accordingly findings set aside those or- and Military (UCMJ), form Code of Justice sentencing proceedings dered further 843(b) (2000), § applies retroactively U.S.C. respect remaining finding to the under Arti- to offenses committed before the amend- cle ment’s specified effective date. The Court appealed The Government under Article an additional whether issue: this Court has Army UCMJ. The Court of Criminal statutory authority to exercise Appeals granted appeal, holding over decisions of the courts of criminal applied amendment to the statute retroac- peals pursuant rendered to Article tively post-trial proceedings and that (2000). U.S.C. We answer de Lopez continue. United States v. specified issue as to our Victoria, 65 521 (A.Ct.Crim.App.2007). M.J. affirmative, but reverse the Court of Appellant petitioned then this re- Court for Appeals Criminal on merits. view Appeals’ of the Court of Criminal deci- sion. I. deciding While this was whether Officer and court enlisted members con- grant review, Appellant moved this Court Appellant, contrary victed pleas, his stay proceedings all trial re- and order him indecent acts and liberties with a child be- leased from confinement. We denied that 24, 1998, 1, 1999, tween November and June motion. August On specification making and one a false offi- sentence, authority approved adjudged statement, cial in violation of Articles except for the forfeitures. (2000). §§ 10 U.S.C. He acquitted specifica- was an additional II. assault, tion of indecent acts and one of violation of Prior to there was no (2000). § 928 Ap- provision interlocutory Court members sentenced appeals by for pellant discharge, government to a dishonorable reduction in courts-martial. Such issues E-l, allowances, pay all forfeiture of and were peti reviewable the context of years. See, extraordinary confinement for four tions for e.g., relief. Det tinger v. United 7 M.J. During trial, military judge sua (C.M.A.1979); Samuel, West C.M.A. sponte raised appli- the issue whether the (1972). 45 C.M.R. 64 cable prosecu- statute of limitations barred tion of charges specifications, Military some Act but Justice Pub.L. (1983), Ultimately, ruled that it post- did not. in a Article 62 amended 39(a), trial pursuant provide government session held UCMJ to for rulings military judge U.S.C. that terminated judge Appel- proceedings charge reversed himself and held that to a spec- lant’s indecent ification convictions for acts and liber- or that excluded evidence that was limitations, ties proof were barred the statute of substantial of material fact.1 The 43(b) President, contemporaneous in that implemen- the 2003 amendment to Article in his 104-106, 1141(a), again 1. Article was amended Pub.L. No. Stat. provide interlocutory appeals for of certain The 1996 amendments are not questions relating to classified information. Na- issue here. tional Defense Authorization Act for FY Act, Appeals’ action was provided ap of Criminal expressly the Court tation peal decisions of adverse appeal. to this Because the Court limited Court, and from our Court to our upon acted 908(c)(3) (Manual Court. R.C.M. sentence, findings argued, (MCM) Courts-Martial, United States jurisdiction present no over this Court has (1984 ed.))2; 1259(2), see enacted 28 U.S.C. appeal. (providing the Act for discre part as Court, courts, is a This like all federal re tionary Court review of cases jurisdiction. v. court of limited Clinton by appeals a court of criminal viewed 535, 119 Goldsmith, to Judge Advocate General orders sent the (1999); Alan review). 13 Charles Thereafter, 143 L.Ed.2d for we held this Court Miller, jurisdiction Cooper petition had over a filed Arthur Edward H. Wright, that we R. by appellant seeking Freer, an review of an adverse Richard D. Federal Practice and and by a court of review on a ed.1984). decision (2d juris § 3522 That Procedure government appeal military judge’s a from ultimately by diction is conferred the Consti charge specification and on dismissal of tution, immediately by and statute. Howev grounds. trial v. Tuck speedy United States er, principle not mean that our this does (C.M.A.1985). er, 20 M.J. jurisdiction teasing by is to determined be particular provision of a out a statute argument specified In its brief and the reading apart the issue, from the whole. Since meaning” Appellee3 “plain relies on a UCMJ, analysis beginning jurisprudence of Article under the Admitting that Article governing our we have read the statutes 67(a)(3)’slanguage granting juris- this Court jurisdiction whole, integrated as an the with by diction over “all reviewed court of purpose carrying out the intent of Con which, appeals upon criminal petition” is gress v. enacting them. United States “arguably” enough grant broad to this Court Best, (1954); 4 C.M.A. 16 C.M.R. 155 jurisdiction appeals, Appellee over such Merritt, 1 C.M.A 67(c), UCMJ, points to Article fatal to as (1951).4 it axiomat “[W]e C.M.R. 56 believe jurisdictional claims: interpreted light ic that Article 67 must be it, any by case reviewed the Court jurisdictional concept of the overall intended may for the Armed Forces act through by Congress, and not the selec only respect findings with and sen- reading tive narrow of individual sentences approved by convening tence as au- Leak, within article.” United States thority and as affirmed or set aside as (C.A.A.F.2005). Leak, 61 M.J. incorrect in law Court of Criminal 67(c), to Article we declined read Appeals. juris as a limit on isolation substantive our 67(e), because do so “would diction defeat grant intent of Article 67—to this case, overall authority In this while the sentence, findings jurisdiction acted on has now to decide matters of law Court provisions Although Appellee authority Similar included current Best as in the 4. cites 908(c)(3) proposition jurisdiction version of the Manual. R.C.M. {Manu- that we are without Courts-Martial, {MCM) (2005 case, al United States this that case does not constitute such ed.)). years authority. thirty Best was decided almost present before the enactment of the case, involving petition and was a not "Appellee” 3. We refer rather than "Govern- writ, extraordinary either certification or position no ment” because there is unified interlocutory ap- avenues available for then among government appellate divi- different brief, represent peals. did the law It state of sions in this case. In an amicus the Air interlocutory at the time argues with matters good remains Force that Tucker law minimum, considering Military was Justice jurisdiction Court has p. appeals of 1983. See 71. Best was overruled hear Government of Article Act infra jurisdictional holding to its narrow in United decisions rendered the courts of criminal Boudreaux, (C.M.A.1992). peals. 35 M.J. States by appellants by Judge appeals’ review of court raised or certified further of criminal “post-trial Advocates General.” Id. at 242. The same proceedings.” decisions S. principle applies 3(v)(2) (1982). here. Cong. During 97th however, legislation, pendency provides expressly text our Department opposed of Defense and others “all cases re- Court passed such a limitation.5 The con bill as Appeals” upon a Court of viewed limitation, legislative tained no such and the General, Judge certification Advocate history expressly appeals: addressed such 67(a)(2), UCMJ, petition may appeal party [Article “Either an adverse accused, 67(a)(3), UCMJ. Section ruling Military appeal] from the Court provides of Title Appeals.” Military Review the Court of direct appellate over our 98-53, (1983). Moreover, S.Rep. No. at 23 provisions decisions. These further the stat- Military the state of the law at the the time utory purpose of enacting a “Uniform Code explicitly of Justice Act 1983 was enacted Military statutory of Justice” in the 1950 and jurisdiction comprehended in Court of the of purpose Military the Act of 1983 in Justice UCMJ, 67, Military Appeals under Article authorizing Supreme direct Court review of interlocutory by the review decisions courts by appellate military in the decisions courts of review. v. Red United States justice system. Appellee’s position “all —that 100, (C.M.A.1981). ding, 11 M.J. 104-06 67(a), UCMJ, in cases” Article does not in- words, Congress against legislated other a interlocutory appeals clude of adverse trial judicial backdrop already provided that for a rulings purposes court defeat the of —would reading of “cases” in broad over by precluding both statutes of direct extraordinary context, writ aris the whether disparate decisions appellate lower courts. certification, ing through Redding, as in longstanding interpretation The Caprio, as in 12 petition, United States v. legisla- text is consistent with (C.M.A.1981). Thus, 30, M.J. Con history of Congress, tive gress’ permit appeals decision from either enacting UCMJ, in in revised Article party jurisdictional in the 1983 Act was not a 1983, clearly govern- intended to afford innovation, adaptation existing but an right appeal which, ament “to the extent replace Title 18 statute to the cumbersome practicable parallels ... extraordinary procedure writ direct permits appeals by which United States appeal procedure. 98-53, prosecutions.” S.Rep. in federal No. (1983). Wilson, v. at 23 United States 420 has over Our Court exercised 332, 338-9, U.S. 95 S.Ct. 43 L.Ed.2d government appeals interlocutory direct (1975), Supreme 232 read 3731 Court present cases since enactment of the expressing a appeals desire “to authorize Supreme as has the ____ constitutionally permissible whenever The landmark Solorio v. Court. case of inescapable seems that was [I]t 107 S.Ct. United creating determined to avoid nonconstitution- (1987), govern 97 L.Ed.2d 364 which the right appeal.” al bars the Government’s ruling appealed military judge’s dis ment government appeals Since in criminal cases missing charges certain under the “service Article III courts are creations of Parker, v. connection” doctrine of O’Callahan Court, statute no less than in United this 395 89 S.Ct. 23 L.Ed.2d 291 U.S. Sanges, v. States (1969), Military of instructive. The Court principle ap- L.Ed. the same Solorio, reversed, Review plies appeals. to Article (C.G.C.M.R.1985), whereupon the M.J. 512 petitioned original this Court for review. bill Senator accused The introduced Jepsen Court of Roger of Iowa would have limited affirmed decision of the We 97, 115, 201, Services, Military Cong., Hearings The 97th 2d 5. See Justice Act 1982: Sess. of Manpower on on S. the Subcommittee Before on Armed and Personnel Senate Committee Solorio, rulings prosecution trial adverse Military Review. United States proceedings. The (C.M.A.1986). Supreme in federal civilian criminal The M.J. eases statutory authority for of all review under 28 U.S.C. granted Court certiorari under appeals authorizing from the courts of criminal 1259(3), provision the Su- 67(a)(3), 67(a)(2), and Article preme grant certiorari Court Supreme review the with further “granted petition for re- which this Court 1259(3) 867(a)(3) fulfills one title 10.” 28 Court under 28 U.S.C. view section under Code 1259(3); Solorio, of the Uniform purposes 107 of the central U.S.C. appli- uniformity in the (exercising Military power under that S.Ct. 2924 its Justice — statute). among military ser- 67(a)(3), authorizes cation the Code v. Tuck- United States reviewed a vices. The decision to review “all cases Court er, (C.M.A.1985), subsequent in which the 20 M.J. 52 Appeals” Court of Criminal cases, exer- including Court’s good cause. petition accused’s establishes Solorio, jurisdiction in ensures cise certiorari, granted will dismissed on the basis eases not be noting interlocutory nature theories, appli- legal that the erroneous Solorio, 437-38, peal.6 U.S. at among the cation of the law will be uniform certiorari, Supreme Court not 2924. On military departments. United States Cf. only agreed military judge that the erred Monett, 16 C.M.A. 36 C.M.R. merits, the but overruled O’Callahan. Solo- (1966) provided (stating “Congress 337 rio, 436, at 107 2924. Solorio 483 U.S. S.Ct. of process a means the certification as procedural pres- of the posture mirrors the of, in, uniformity in- achieving certainty 62, ent an Article Government case: in each terpretation of the Uniform Code appeal criminal to the service court of force, as the armed armed as well for all peals, appeal followed defense forces”). Accordingly, we that eases affirm question was court. Ultimate review of 62, UCMJ, may be appealed under Article Supreme had certiorari Court. on 67(a), reviewed Article UCMJ. under subsequent in Clinton v. The decision proposition does not stand for the Goldsmith III. improperly in Court acted in

reviewing our Article decision of acts and liberties The indecent Goldsmith, place Clinton Appellant Solorio. See was convicted took which 529, 24,1998, 119 143 L.Ed.2d 720 S.Ct. at various times between November (1999) 67(a), UCMJ, (referring acts were our Article and June 1999. When these committed, applicable limita finding over cases in which a or statute of (or been) years, provided as in Article imposed “was have tions was five sentence 43(b)(1), opposed in proceeding,” a court-martial as UCMJ. actions). The purely administrative Article 2003, Congress amended 62, UCMJ, posture present of case one 43(b)(1), UCMJ, except general from the finding in or “could which a sentence have five-year “child abuse certain listed statute imposed. imposed, been” was in fact See 43(b)(2)(B), offense[s],” in listed (citing also 537 n. 119 1538 id. at UCMJ, including indecent acts and liberties Bond, 693-99,

Noyd 89 The limitations with child. statute of in which the (SOL) when expire offenses would these approval our Court discussed age twenty-five the child of reached matters). interlocutory Act years. Defense Authorization National 108-136, 551, § FY No. that the Pub.L. ensures Gov- (2003).7 1392, 1481 Stat. opportunity has the same ernment charges opposed after the certiorari 7. A further amendment 6. The Solicitor General had summaiy against grounds. Appellant were received ripeness for the United States Brief (No. 85-1581), convening authority, changed the court-martial Opposition Solorio greater period to the of the life limitation U.S. S.Ct. Briefs LEXIS 1166. provisions § following chronology is a 3283 for abuse rele- of 18 U.S.C. child vant events this case. under the At offenses tried time, § provided as follows: “No stat- Date Event 24,1998 Beginning period during Nov. ute of pre- limitations that would otherwise alleged which offenses are prosecution involving clude for an offense have occurred sexual physical abuse of a child under 1,1999 period during June End of which age alleged years preclude prosecu- offenses are to have shall such occurred age tion before the child reaches of 25 new SOL— n Nov. date of Effective years.” Senator Nelson’s bill never became twenty-five child until reaches law.9 May Expiration five-year SOL alleged for all indecent acts Instead, substantively Congress chose to offenses May Receipt charges by sum- 43, UCMJ, by inserting amend Article into it mary court-martial separate child statute limitations for authority8 abuse offenses devoid reference to McElhaney, 54 M.J. National FY Defense Authorization Act for (C.A.A.F.2000), apply declined to we (NDAA), 108-136, Pub.L. No. civilian child abuse statute limitations con- (2003).10 117 Stat. sec The new tained 3283 to courts-martial. 43, UCMJ, provided tion of Article as fol Pointing out that and civilian charged “A person having lows: com systems justice separate of criminal aas against mitted a child abuse offense a child is such, great matter of law and caution if liable to be tried court-martial judicial should be exercised extension of specifications charges sworn are received general system, statutes to court-martial years age before the attains the child of 25 wording we examined the of the statute and exercising summary an officer court-mar supplant determined that it did not person.” tial to that 43, UCMJ, applicable as the statute of limita- 43(b)(2)(A), UCMJ. The NDAA tions for child abuse offenses under accompanying report wheth are silent on 124-26; at McElhaney, UCMJ. 54 M.J. see Congress ap er intended the to amendment 89, Spann, also United States v. 51 M.J. 92- ply prospectively retroactively. or (C.A.A.F.1999) (holding that, light 93 military justice system being separate from Congress certainly possesses While system, justice federal criminal federal vic- authority apply constitutional legislation rights apply tims’ statute did to court- subject retroactively, Ex limits of the practice martial absent affirmative action Clause, 9, I, § Post Facto U.S. Const. Art. cl. President). 3, application retroactive of statutes is nor- mally explicit not favored the absence of 2003, early In Bill Nelson of Flori- Senator language implica- necessary in the statute or da, a member of the Armed Services Com- Georgetown tion therefrom. Bowen v. Univ. mittee, response introduced a bill to McEl- 204, 208-09, Hosp., 488 109 U.S. S.Ct. haney to conform the statute of (1988); 102 L.Ed.2d 493 Greene v. United limitations for child sexual abuse offenses to 615, 11 376 84 U.S. S.Ct. federal Congress rule. S. 108th (1964); (2003). Magno- bill would have amended Article Co., 162-63, incorporating lia 276 48 reference Petroleum years Appeals’ child or five after offense. National 9. The Court statement Defense Authorization Act for FY "Congress Pub.L. incorporated lan- Senator Nelson’s 109-163, (2006). § No. Stat. Act,” Victoria, guage Lopez de into the ... This amendment at issue in this is not case. Congress at what did. M.J. mischaracterizes An accused to be tried is not liable court- re- 10. Section 3283 is referred to in the Senate charges martial unless the are received sworn enlighten- port, provides but the reference no summary convening authority court-martial temporal application of the ment as to the prescribed period. within the limitations See 108-46, 43(b), S.Rep. amendment. No. at 317 (1928); applying. That is some evi- L.Ed. 509 2 Norman J. limitation from S.Ct. Statutory Singer, Congress Construction dence that intended Statutes (6th ed.2001). legis- principle ply retroactively. This There was also some 41.4 applies history supporting to statutes of limitations. See also such a conclusion. lative Towing, contrast, Chief, Fordham v. Belcher 710 F.2d 438 F.3d at 924. neither (11th Cir.1983); Singer, J. 3A Norman language of Article nor the pra, 72.3 at 709. any legislative history provide evidence that su 43(b)(2)(A), Congress intended Stogner California, retroactively. apply 156 L.Ed.2d 544 the Su- preme prosecution Court held that a criminal Appellee argues that the fact that Con- pur- for child abuse offenses under a statute gress entitled the amendment “Extended porting revive offenses were barred period prosecution limitation of child at the time of the statute’s enactment violat- in- abuse cases in courts-martial” evinces an Ex ed the Post Facto Clause of the Constitu- period tent to extend the cases such as tion. Id. at 123 S.Ct. 2446. The Court headings this. Catehlines or section such as declined to address whether a statute ex- part They this are not of a statute. cannot tending unexpired statute of limitations vary plain meaning its and are available for (as here) is the case ran afoul of the clause.11 they interpretive purposes if can shed Still, Id. at 123 S.Ct. 2446. that is not light ambiguity on some in the text. Bhd. of question before us. R.R., R.R. Trainmen v. Baltimore & Ohio 519, 528-29, 91 L.Ed. question What is before us is a (1947). Here, however, the text of the construction, question which is a of law to be ambiguous; statute is not it is It silent. Falk, decided de novo. United States v. heading ambiguous. the section itself that is (C.AA.F.1999). M.J. As noted ipso provides The amendment facto an “ex- above, amending both the 2003 statute Arti- period,” years tended limitation from five cle legislative history and its age twenty- the date the child reaches silent as to whether intended it to wording heading five. The of the section this, apply retroactively to cases such as apply equal purely force to a only to cases which the offense occurred prospective retrospective or a extension one. after the effective date of the statute. case, being That it is of no assistance cognizant areWe of the recent federal determining Congress. the intent of interpreting § cases apply- 18 U.S.C. 3283 as urged It is also that statutes of limitation ing retroactively to cases in which statute “procedural” opposed statutes as to “sub- previous became effective before the limita- ones, changes stantive” that such stat- expired tion had on the accused’s conduct. See, subject presumption utes are not to the e.g., Chief, 920, 438 F.3d (9th against retroactivity Cir.2006); applies to substan- 923-24 United States See, (8th Cir.2005). Jeffries, 682, changes e.g., Landgraf tive in law. 405 F.3d 684-85 Prods., § Film predecessor, But 3283’s USI 511 U.S. 275 nn. 18 U.S.C. (1994). 3509(k), § just did 128 L.Ed.2d change previous statute of This at increasing longstanding limitations the term would be odds with our statutes, period, approach of the limitation as to construction of was done with such 43, UCMJ; instead, 3509(k), § Article later which has been to look at each as a statute whole, precluded previous recodified as considering language, legislative its Furthermore, Analysis Supreme 11. The 2005 amendment to the of the to the statute. Court mere- 907(b)(2) changes R.C.M. discusses the ly stated that its decision did not affect federal light Stogner, statute of limitations in of as fol- appellate "upheld court that had decisions exten- permits unexpired lows: "The referenced case periods unexpired Stog- sions of statutes of limitations.” statute, to be extended the new but ner, any 123 S.Ct. 2446. expired does not allow the statute to renew an event, statutory this is matter of construction (Oct. 18, 2005). period.” Fed.Reg. As that we decide de novo. infra, Stogner discussed dealt with a different construction, Missouri Bank Congress.” In re United history, the canons of of N.A., decisions, F.2d City, Kansas and the applicable Court omitted). Cir.1990) (internal (8th I citation congressional intent to create and maintain neither Article military justice dissent in this case because separate system of —without Military Justice “procedur- as Uniform Code regard categorizations such (2000) See, (UCMJ), Article at 124-26. nor e.g., McElhaney, 54 M.J. U.S.C. al.” 67, UCMJ, any nor approach.12 engage decline to such We provides appeal for an of an other statute any Considering the lack of indication of This appeal Article to this Court. apply intent the 2003 congressional power to act unless Court does not have the retrospectively to cases such amendment statutory authority to Congress given it this, general presumption against retro- my the intent of or do so: view of such an spective legislation the absence President, it not enacted to the extent is presumption general indication and facially inconsistent with in a statute and is criminal liberal construction of statutes statute, another is not sufficient. repose, limitation in favor of we decline to 62(a)(1), UCMJ, Article affords Gov- of the 2003 amendment to extend the reach right appeal specifi- ernment the certain prior which arose rulings by cally identified trial to the amendment statute. UCMJ, 62(b), judge. provides right is to this Government IV. (CCA). Article Appeals Court Army States The decision United gives jurisdiction to the CCA reversed. The of Criminal is nothing appeal and act on a Government Charge I specifications Charge I and are more. record of trial is returned to dismissed. The plain, language is the statute’s “[WJhen Army for Judge Advocate General of the courts —at least where sole function authority to order referral disposition required by the text is not rehearing. sentence according to its to enforce absurd —is Ins. Co. v. terms.” Underwriters Hartford ERDMANN,

RYAN, Judge, Bank, N.A., with whom Union Planters joins (dissenting): (2000) (cita- Judge, 1942, 147 L.Ed.2d 1 120 S.Ct. omitted). The quotation marks tions and Goldsmith, In Clinton v. does not plain language of Article “independent Court stated that this Court’s implicate mention this Court statutory jurisdiction narrowly circum- Nothing in text of Article scribed.” 526 U.S. 119 S.Ct. jurisdiction to provides this Court This statement appeal from a decision of a CCA entertain an rule “Ar- the well-established reaffirms based on UCMJ.1 special courts ticle I courts are 67(a)(2) states the and by Congress given be Article created that cannot jurisdiction this Court ex- subject matter III courts. The plenary powers of Article by Judge Advo- only specified I tends to cases authority of the Article court is [C]onstitution, by the CCA lim- or cases reviewed by but cates General circumscribed good and on by “upon petition of the accused by powers given to it ited as well Rather, Moreover, jurisdiction. involving attempted categorize this Court’s case even if one “procedural,” proposition only general the hold- statutes of limitation as ing more it stands for the suggests they Stogner that are in v. appeal availability from of Government that California prose- revival of a time-barred "substantive.” If ruling be available to the trial should an adverse extending violates the Ex cution an statute gener- permissible under the Constitution extent Clause, itself cannot Facto then the statute Post particular. jeopardy in ally double clause and the merely procedural. Stogner, U.S. at 611- be 332, 338-39, 43 L.Ed.2d 95 S.Ct. 420 U.S. S.Ct. 2446. contrary— v. Wilson to the 1. Nor is United States involving jurisdiction, let alone a a case it is not shown____” 67(a), UCMJ, why exempted nation as to the instant case is cause Article 67(c), UCMJ, implicate not mention or Government does from either Article or Su- 62, UCMJ, appeals pursuant to Article statutory pro- preme reading of that Court’s jurisdiction. In cases within this Court’s jurisdiction express vision to limit our to the this, light of it is not at all clear to me how It unclear to terms of the statute.3 is thus asserts, majority possible, as the to dis under me how this Court 67(c), UCMJ, import count the of Article 67(c), UCMJ, to take action with re- 67(a), jurisdiction of this Court. part gard ruling to a that is not itself conjunction must be read in with the adjudged and has not findings or sentence statute, including remainder of the authority. approved by been See, Chao, 67(c), e.g., Doe v. Congress clearly expressed this Court’s 614, 630-31, 124 1204, 157 U.S. S.Ct. L.Ed.2d 67, UCMJ, jurisdiction under Article (2004) (“It principle is a cardinal nothing about this Court in Article said statutory ought, construction that a statute whole, upon examining if it UCMJ. Articles 62 and to be so construed clause, sentence, prevented, can be no or together, we must be mindful that void, superfluous, insignifi shall word be consistently Court has held that cant.”) (citations quotation marks omit Congress particular “[where] includes lan- ted); United Sav. Ass’n Timbers guage in one section of a statute but omits it Assoc., Ltd., Inwood Forest generally pre- ... another section it is (1988) 108 S.Ct. 98 L.Ed.2d 740 Congress intentionally sumed that acts (stating statutory that construction is “hol purposely disparate ... exclusion.” endeavor”). 67(c), UCMJ, istic And Article States, Russello United part, any states relevant case re “[i]n (1983) (citation 104 S.Ct. 78 L.Ed.2d 17 it, viewed the Court of for the omitted); Corp. see also Keene v. United may only respect Armed Forces act 200, 208, 113 findings approved and sentence as (1993) (finding that of a the use convening authority and as affirmed or set phrase part one of a scheme aside as incorrect the Court of law duty “only underscores our to refrain from Appeals.” reading phrase into the statute when Con- nature, By very its of an Article section). gress has left it out” of another We interlocutory: appeal is there has presume gave obliged that sentence, findings, been no no and no conven- appellate jurisdiction over Article ing authority action. Goldsmith the Su- appeals Government to the CCAs alone. preme principle Court reaffirmed the majority opposite presump- makes the this Court can “act to the tion, expanding this Court’s Article findings approved by and sentence as UCMJ, jurisdiction to matters that do not convening authority and as affirmed or set 67(c), UCMJ, by fall within Article reference aside as incorrect in law the [CCA].”2 534,119 legislative history of Article (citing 526 U.S. at UCMJ). 67(c), Victoria, statutory expla- Lopez There is no UCMJ. See de 66 M.J. at Majority precise 2. The cites to and notes that in this case have Goldsmith issue could 67(a) brought extraordinary pursuant been as an writ this Court has “Article (or finding to the All Writs Act and Article that is cases in which a or sentence 'was been) procedural posture imposed pro- not the of this case. have in a court-martial ” Victoria, ceeding.’ Lopez de Goldsmith, (quoting M.J. at 71 526 U.S. at Contrary Majority, 3. to the assertion of the nei- 1538). course, 119 S.Ct. Of in Goldsmith the holding reasoning nor in United States v. ther Supreme application Leak, 67(c), Court addressed the of the reading invites a different of Article Act, light (C.A.A.F.2005) All Writs in UCMJ. See 61 M.J. 239 n. jurisdictional scope (distinguishing the limited of Article between "review” of this Court's UCMJ, 67(a), nothing UCMJ. Goldsmith said about the rela- cases under Article and the limita- 67, UCMJ, 67(c), tionship power between Articles 62 and "act” tion on its under Article case, UCMJ). question today. may before us While it well be In this the Court "acts.” discus- jurisdiction, matter there was neither is unfounded for two reasons. 69-70. This First, present jurisdic- provisions of of nor a decision on the [a statute] when “the sion unequivocal their face ... [there clear and on tional issue. legislative histo- no need to resort to is] Finally, agree I that United States v. while ry.” Oregon, v. 366 U.S. United States Tucker, (C.M.A.1985), 20 M.J. 52 held 1278, 6 L.Ed.2d 575 81 S.Ct. jurisdiction in Article Court has this UCMJ, only plain text of court, UCMJ, appeals to the lower reliance jurisdiction gives the CCA over Government First, justifica- misplaced. the initial on it is 67(c), appeals, plain and the text of Article given finding in tion for the only to “act permits this Court reliance on older Tucker was this Court’s findings and sentence as cases, that asserted this Court was convening authority proved by the and as supervising all facets of mili- responsible for in law affirmed or set aside as incorrect justice. (citing tary 20 M.J. at 53 United Appeals.” See Gold- Court (C.M.A.1981), Caprio, v. 12 M.J. States smith, at 526 U.S. Redding, v. 11 M.J. and United States Therefore, legis- inappropriate it is to look to (C.M.A.1981)). course, Of the Su- history lative at all. rejected preme this view. Court Goldsmith Second, majority’s legisla reliance on (“the 536,119 is S.Ct. 1538 CAAF history relating to Article tive authority, by All Act or given the Writs statutory pro construe otherwise, arguably all matters to oversee earlier, adopted thirty-three years is

vision military justice, or to act as a related to misplaced. have on more than “We observed judg- even of criminal plenary administrator interpretation given by one occasion affirmed”). The Tucker Court ments (or Congress one a committee or Member guidance did not have the Court’s thereof) to an earlier statute is of little assis point they relied on the notion on this when discerning meaning of that stat tance authority Redding plenary Caprio and Sys. Employees ute.” Public Retirement view, military justice. my light Betts, 158, 168, 109 492 U.S. Goldsmith, these cases are too slender a reed (1989); L.Ed.2d 134 see also United States Moreover, jurisdiction. upon rest which to Price, 80 S.Ct. justification given for the other (1960) danger (noting L.Ed.2d 334 holding in Tucker —that we can base Court’s legislative history using post-enactment be re- Congressional intent as subsequent Congress cause “the views of a history legislative of Article flected in inferring form a hazardous basis provide as discussed above—does not one”); tent of an earlier Abner J. Mikva & statutory jurisdic- satisfying substitute Lane, Statutory In Erie An Introduction to supra pp. tion. See 75-76. Legislative Process 39 terpretation and the (1997) (“Postenactment legis explanations of majority’s certainly plausible It that the absolutely ta meaning lative would seem correct, legislative history is and reading of boo.”). asserts, that, as it the members Senate on Armed Services of the 97th Committee Nor is the fact that Solorio v. United permit 98th intended 435, 107 S.Ct. of a CCA ad- to review the decisions Court (1987) originated in a Govern- dressing a Government Lopez de ment “instructive.” Victo- disagree as a appeal. And I do not ria, pleadings at 70. Neither the 66 M.J. policy, immediate review of legal matter of ease, in that parties, granted issue 62, UCMJ, appeal by this Court an identi- opinion nor the expeditious course of ac- be the most proce- any issue related to the fied or raised expedien- congressional tion. But intent history in it related to this dural that case as jurisdiction, to confer cy are not sufficient jurisdiction. opinion ad- While Court’s Article 62 or nothing in either jurisdictional theory important dressed power gives this Court the subject expressly regarding scope of court-martial our statutori- Congress cannot amend reason procedural posture to review Court Goldsmith this case. achieve jurisdiction in order to ly conferred give this Congress must made clear that Congress and majority result the asserts authority to act. statutory grant of Court a the President intended. There is no 119 S.Ct. 1538. here, respectfully I dissent. and no statutory grant of

Case Details

Case Name: United States v. Lopez de Victoria

Court Name: Court of Appeals for the Armed Forces

Date Published: Feb 26, 2008

Citation: 66 M.J. 67

Docket Number: 07-6004/AR

Court Abbreviation: C.A.A.F.