United States v. MillerUnited States v. Miller
Special Court-Martial convened by Commander, Coast Guard Activities New York. Tried at New York, New York, on 21 November 2003.
Military Judge: CDR Michael E. Tousley, USCG
Trial Counsel: LCDR Luke M. Reid, USCG
Defense Counsel: LT Brian A. Whitaker, JAGC, USNR
Appellate Defense Counsel: LCDR Nancy J. Truax, USCG
Appellate Government Counsel: LCDR John S. Luce, Jr., USCG
BEFORE
EN BANC
BAUM, KANTOR, McCLELLAND, TEAL, & FELICETTI
Appellate Military Judges
OPINION AND ORDER OF THE COURT RESPONDING TO APPELLANT’S MOTIONS
BAUM, Chief Judge:
Background
Appellant was tried by special court-martial military judge alone on 21 November 2003. After conviction of various drug offenses pursuant to pleas of guilty, entered in accordance with a pretrial agreement, Appellant was sentenced by the judge to a bad-conduct discharge and
The Convening Authority treated counsel’s submission as an effective waiver of appellate review, causing the record to be reviewed by a judge advocate under the terms of
Upon reevaluation, the Judge Advocate General presumed the waiver of
Time Requirement for Signing Waiver of Appellate Review
In the record before us, although a waiver of appellate review pursuant to
We discern language in those cases that strongly suggests that signing is limited to the time for filing. First, in Hernandez, the Court of Military Appeals granted review of the following issue:
WHETHER A WAIVER OF APPELLATE REVIEW EXECUTED BEFORE THE CONVENING AUTHORITY TAKES ACTION ON A CASE DEPRIVES THIS HONORABLE COURT OF JURISDICTION.
Hernandez, 33 M.J. at 147 (emphasis added). The Court responded that, “Clearly, the answer must be in the negative.” Id.
While the Court went on to discuss the time-of-filing requirement and seemed to hold the waiver ineffective because of its filing at the wrong time, saying nothing more about the time of signing or executing, the fact remains that the granted issue relates to the time of execution, which is a term that includes the act of signing1. Subsequent to Hernandez, the President amended
From our perspective, it seems unquestionably to be the view of our higher Court that
Do these different facts warrant a different result? We think not. Certainly, when signed before action by the convening authority, the accused does not have the understanding required by
The provision in
Waiver Decision and Conversion to Article 66, UCMJ, Review
In light of the foregoing, we hold that the waiver of appellate review filed with the Convening Authority was not a valid waiver. Accordingly, the record should have been referred to this Court for review pursuant to
Motion to Withdraw Article 66, UCMJ, Review
In acting on the motion to withdraw, we note the distinct difference between the statutory treatment of withdrawal as opposed to waiver of appellate review. Submission of a waiver is limited to a particular period of time, as we have already discussed, but
In the past, we have taken to heart our judicial review responsibilities with respect to motions to withdraw appellate review, which has resulted in a determination in one case that a withdrawal request had been improperly induced in violation of
In light of the foregoing, it is by the Court this 19th day of October 2005,
ORDERED:
That Appellant’s motions to file documents and to withdraw the record from appellate review are hereby granted. The record is returned to the Judge Advocate General for whatever action remains to finalize this case.
McCLELLAND, Judge and TEAL, Judge concur.
FELICETTI, Judge (concurring in part and dissenting in part), in which KANTOR, Judge joins:
We concur with permitting SN Miller to withdraw his case from appellate review. He has been fully informed by competent defense counsel on numerous occasions about the consequences of either waiving or withdrawing from appellate review. It has always been his desire to аvoid appellate review and we should respect his request.
We also concur with the majority’s unstated holding that this Court is prohibited from granting a requested withdrawal from appellate review when a case is referred by the Judge Advocate General (JAG) under
We respectfully dissent from the holding that
SN Miller met with his defense counsel after sentencing on 21 November 2003 to discuss his appeal rights. SN Miller said he wanted to waive his rights, so defense counsel provided him with a standard waiver/withdrawal of appellant rights form, DD FORM 2330, AUG 84. SN Miller read the form and understood it.
A little more that three months later, SN Miller signed the DD FORM 2330, AUG 84 and mailed it to his defense counsel. It is unclear from the record when the typed entries were made on the form. However, the typed words “CA Action not yet completed” appear in the first blank space. The defense counsel filed the form with the Convening Authority on 5 March 2004, well before the Convening Authority approved the court-martial findings.
Defense counsel was served a copy of the Convening Authority’s action on 8 July 2004. Receipt of the action may have reminded the defense counsel that
With SN Miller’s approval, the defense counsel took the following actions: He modified, or caused to be modified, the DD FORM 2330, AUG 84 previously signed by SN Miller to indicate that he had now read the Convening Authority’s action. The defense counsel signed a letter stating that he had advised SN Miller of his appellate rights, and that SN Miller desired to waive these rights. Finally, the defense counsel sent the modified DD FORM 2330, AUG 84 to the Convening Authority using the previously discussed letter as the cover letter.
At some later date in 2005, appellate defense counsel advised SN Miller that his earlier waiver may not have been valid. SN Miller reiterated that he had been fully informed on numerous occasions of all the consequences of waiving his appeal rights and still wished to waive his appeal.
10 U.S.C. 861(a) Requires that a Waiver of Appellate Review be Filed Within 10 days After the Convening Authority Action is Served Upon the Accused or Defense Counsel, However, the Statute Does Not Also Require the Accused and Defense Counsel to Sign the Waiver Within this Same Timeframe.
Time Requirement for Filing a Waiver of Appellate Review
SN Miller’s first purported waiver of appellate rights, filed on 5 March 2004, clearly had no legal effect since it violated the plain language of the UCMJ. The UCMJ requires that any waiver of appeal rights “must be filed within 10 days after the action under section 860(c) of this title (article 60(c)) is served on the accused or on defense counsel.”
Our higher Court has directly addressed the issue of prematurely filed appeal waivers, holding consistently, if unremarkably, that the statute means exactly what it says. United States v. Hernandez, 33 M.J. 145 (C.M.A. 1991); United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996). “The statutory language seems perfectly clear and, given its most obvious reаding, would seem to mean that a waiver must be filed only within a 10-day period after the convening authority has acted and his action has been served upon the accused or on defense counsel.” Hernandez, 33 M.J. at 148.
This Court has also previously addressed the issue of prematurely filed waivers. Relying on Hernandez, we stated: “To bar appellate review of a case, however, waiver must be filed within ten days after service of the convening authority’s action on the accused or his defense counsel, not before that action is taken.” United States v. Haynes, 53 M.J. 738, 739 (C.G.Ct.Crim.App. 2000); see also United States v. Greening, 54 M.J. 831, 833 (C.G.Ct.Crim.App. 2001).2
While clearly focused on the timing of a waiver’s filing, our higher Court has referred to a signed and filed waiver as having been “executed.” Hernandez, 33 M.J. at 147. This usage is consistent with the first definitions of the word execute as a verb meaning “[t]o perform or complete (a contract or duty),” BLACK’S LAW DICTIONARY 609 (8th ed. 2004), or “[t]o put into effect; carry out.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 621 (4th ed. 2000). Thus, any signed waivers that are filed (i.e. “executed“) before the convening authority’s action, such as those in Hernandez, Smith, Haynes, Greening, or SN Miller’s 5 March 2004 submission, are clearly invalid. Such waivers have no legal effect because they do not comply with the UCMJ. Id. at 145.
SN Miller’s second waiver of appellate rights, filed on 9 July 2004, complied with the explicit statutory requirement to file the waiver within 10 days of receipt of the Convening Authority’s action.
Time Requirement for Signing a Waiver of Appellate Review
No court has reported a holding that the
10 USC 861(a) . In each case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)), except a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may file with the convening authority a statement expressly waiving the right of the accused to such review. Such a waiver shall be signed by both the accused and by defense counsel and must be filed within 10 days after the action under section 860(c) of this title (article 60(c)) is served on the accused or on defense counsel.
The Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat 1393 (1983) (emphasis added).
Focusing on the statute’s text, the key sentence contains two distinct actions (“signed” and “filed“) connected by the word “and.” The words “[S]uch a waiver” are the subject of the sentence. The sentence contains two distinct, but related, verbs – “shall be signed” and “must be filed.” The use of two slightly different helping verbs, or auxiliary modals, reinforces the separate nature of the two actions.4
The phrase “within 10 days” is a prepositional phrase acting as an adverb to modify the verb “must be filed.” See Diane Hacker, THE BEDFORD HANDBOOK 796 (6th ed. 2002). This much is certаin so the waiver must be filed within 10 days of the action. It is unclear, however, given the placement of the prepositional phrase, that it also modifies the verb “shall be signed.” Given this ambiguity, we look to the chronology of the statute’s construction for any indication that Congress also intended to apply the timing requirement to the signature of the accused and defense counsel.
The statute’s chronology shows that the concepts of signing and filing the waiver were originally treated separately, with the 10-day requirement applying only to the filing. The Military Justice Act of 1983 originated in the Senate as Senatе Bill 974. The key concepts of
[t]he accused may file with the convening authority a statement expressly waiving the right of appellate review. An express waiver of the right to appellate review shall be signed by the accused and defense counsel. The statement shall be filed within ten days after the action under section 860(c) of this title (article 60(c)) is served on the accused or his counsel.
S. Rep. No. 98-53, at 49-50 (1983); H.R. Armed Serv. Comm. Rep. No. 98-9, at 13-14 (1983).
The Subcommittee on Military Personnel and Compensation of the House Armed Services Committee held extensive hearings on S. 974 with no reported testimony on the two key sentences in the Senate bill. The witnesses, and administration, strongly supported the idea of the accused being able to waive appellate review. See H.R. Armed Serv. Comm. Rep. No. 98-9, at 38-49. The Subcommittee favorably reported out the bill on 9 November 1983, reportedly making only “technical” or non-substantive changes. H.R. Armed Serv. Comm. Rep. No. 98-9, at 49; H.R. Armed Serv. Comm. Rep. No. 98-10, at 1-2 (1983).
On 15 November 1983, the full Armed Services Committee favorably reported out the amended bill “which contains a series of technical amendments to the Senate bill that has passed in the other body.” “The substance of the Senate bill in our substitute is basically the same.” The Military Justice Act of 1983: Hearings on S. 974 Before the House Armed Services Committee, 98th Cong. 1st Sess. (1983) (statement of Hon. G.V. “Sonny” Montgomery), reprinted in H.R. Armed Serv. Comm. Rep. No. 98-10, at 1-2. The bill moved to the House floor that afternoon and passed the next day. The Senate approved the technically-amended S. 974 on 18 November.
One of the “technical” changes, however, combined the two sentences in S. 974 about signing and filing the waiver into one compound sentence. Compare H.R. Armed
The full House, moreover, adopted the Senate’s section-by-section analysis of the bill. H.R. Rep. No. 98-549, at 21 (1983), reprinted in 1983 U.S.C.C.A.N. 2187. The sectional analysis of a committee report explains precisely what each section is intended to accomplish. See Charles W. Johnson, (Parliamentarian, H.R.), How Our Laws Are Made, § VII, ¶ 1 (June 20, 2003), available at http://thomas.loc.gov/home/lawsmade.bysec/reported.bills.html (last visited Oct 18, 2005). It would, therefore, be highly counterproductive for the House to adopt the Senate’s section-by-section analysis of thе bill if a substantive change was intended. Especially since the Senate’s sectional analysis, consistent with its version of the bill, limits the timing requirement to the waiver’s filing. S. Rep. No. 98-53, at 22 (1983). Finally, the overall speed with which the full House Armed Services Committee, the House of Representatives, and Senate agreed to the “technical” amendments, along with the lack of Conference Committee, suggests that the House’s “technical” changes were not considered substantive.
On balance, the bill’s chronological history indicates that the absolute requirement to act within 10 days after service of the convening authority’s action only applies to the waiver’s filing. The current sentence in
The House and Senate report language confirms that the primary concern with the new right to waive appellate review was to ensure that the accused made a provident decision to do so — not about when he signed a form.5 The primary goal was to streamline the post-trial review process while preserving the fundamental rights of military members. H.R. Rep. No. 98-549, at 13, reprinted in 1983 U.S.C.C.A.N. 2178. In creating a limited right to waive appeal, Congress ensured that any waiver would be “knowing, voluntary, and in writing.” S. Rep. No. 98-53, at 7-8, 23. This meant that the accused could not make the decision to waive appeal “until after the convening authority takes his action.” Id. at 22. Congress also tasked the Department of Defense to develop a “simple and concise” waiver form which “protects the right of the аccused to make a voluntary and informed choice, and also protects the counsel against unfounded challenges of inadequate representation.” S. Rep. No. 98-53, at 23.
With this focus on a provident waiver of appellate review, the report language concentrates the timing requirement on the waiver’s filing. “The revised provision permits an accused to file a statement expressly waiving the right to appellate review within 10 days after notice of the convening authority’s action in cases that are subject to review by a Court of Military Review under Article 66 or by the Judge Advoсate General under Article 69(a).” S. Rep. No. 98-53, at 22 (emphasis added). Of course, the waiver form must also be signed but the core requirement is for a provident decision by the accused to waive appellate review.
Requirement for a Provident Filing of a Waiver of Appellate Review
Our higher Court has confirmed that the core requirement of
[t]he guilty findings and the sentence may be a very traumatic event for an accused; and, as a result, a “cooling off” period is appropriate so that he may decide rationally and without undue emotion or resentment what to do. The delay until after the convening authority has acted provides this opportunity to reflect calmly on the potential adverse effects of the conviction and sentence and to decide whether to proceed with an appeal.
Secondly, until the convening authority has acted, an accused is not in the best position to make an informed choice as to whether to pursue an appeal. Indeed, the action of the convening authority may surprise the accused and present grounds for appeal that he never anticipated.
Finally, ... If an appeal can be waived too easily and without full consideration by the accused of the consequences, the danger is posed that the waiver may be improvident- ... .
Hernandez, 33 M.J. at 148-149.
While technically dicta, the preferred way to demonstrate a provident filing decision is for the accused to sign the waiver form within 10 days of reсeipt of the convening authority’s action. See United States v. Hernandez, 33 M.J. 145 (C.M.A. 1991); United States v. Smith, 34 M.J. 247 (C.M.A. 1992); United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996). A waiver signed and filed (i.e. executed) before the action is normally improvident because it appears that the accused never knew the results of the convening authority’s action. Hernandez, 33 M.J. at 148. The record does not show that the accused made an informed and voluntary decision after a “cooling off” period. Id. at 148.
The record, however, may sometimes show that the accused’s decision to file (execute) a previously signed waiver form was, in fact, provident. Based on the Hernandez discussion, the providency of such a waiver decision may be demonstrated by a serious, rational, and informed
In this case, the record shows that the accused consulted with his defense counsel and engaged in just such a serious, rational, and fully informed discussion before directing his attorney to execute the waiver. The defense counsel made an official written statement to the Convening Authority representing that: (1) he had either read to the accused, or provided him a coрy of, the Convening Authority’s action dated 18 June 2004; (2) he had spoken with the accused after the action; (3) he had advised the accused of his appellate rights; (4) the accused expressed a desire to waive appellate review; and (5) the attached DD FORM 2330, AUG 84 accurately reflected the desires of the accused to waive appellate review.
While done in a far less than ideal manner, perhaps even sloppily, we find that the defense counsel’s 9 July 2004 submission meets the bare minimum standard to show that SN Miller’s decision to file (execute) the waiver form was provident. It was, therefore, a valid waiver under
For the Court,
Roy Shannon Jr.
Clerk of the Court