United States v. SheaUnited States v. Shea
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Katherine E. Oler and Major Meredith L. Steer (on brief).
Judge SPARKS delivered the opinion of the Court, in which Chief Judge ERDMANN, and Judges STUCKY, RYAN, and OHLSON, joined.
Judge SPARKS delivered the opinion of the Court.
Appellant was tried by a military judge sitting as a special court-martial at Scott Air Force Base, Illinois. In accordance with Appellant‘s pleas, he was found guilty of one specification of disobeying a superior commissioned officer and two specifications of assault consummated by a battery, in violation of
The military judge sentenced Appellant to a bad-conduct discharge, four months of confinement, forfeiture of $750.00 pay per month for four months, reduction to E-1, and a reprimand. The convening authority approved the bad-conduct discharge, the term of confinement, the reduction, and the reprimand.1
On appeal under
Appellant petitioned this Court for review and we granted on the following issues:
- Whether the Court of Criminal Appeals erred on remand when, over Appellant‘s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.
- Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government‘s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.
Remand is a remedy frequently utilized by this Court. Depending on the workload of the lower courts, as well as a host of other reasons, this frequent interchange of cases may result in panels reviewing cases on remand that were not originally assigned to them. The threshold issue, therefore, is whether an accused has a right to have a panel composed of the same appellate judges
Background
The AFCCA‘s First Sentence Reassessment
The underlying facts relating to the charges are not essential to our analysis of the issues, but the AFCCA characterized the facts as follows:
The charges in this case arose out of an abusive relationship between Appellant and his wife. Appellant was arrested in November 2013 after striking his wife and threatening her with a knife. For this incident, the Appellant was found guilty of assault consummated by a battery and communicating a threat. In addition to the November 2013 incident, the Appellant was also convicted of assaulting his wife twice during the fall of 2011. [One specification alleged he struck her on the back with his hand. The other specification alleged Appellant threw a baby bottle at her].
Shea, No. ACM S32225, slip op. at 2. Appellant appealed his conviction to the AFCCA and argued that the Government failed to disclose certain statements in the victim‘s medical records. Id. at 3-4. Appellant‘s case was assigned to a three-judge panel composed of Chief Judge Allred, Senior Judge Teller, and Judge Hecker. Id. at 1. On May 21, 2015, this three-judge panel issued a decision setting aside the conviction concerning Specification 3 of Charge I and reassessed the sentence. Id. at 8. The panel reassessed Appellant‘s sentence to the sentence adjudged by the military judge, rather than the sentence approved by the convening authority. Id.
Appellant filed a petition requesting that this Court review whether the AFCCA erred in reassessing his sentence. Shea, 75 M.J. at 49. We granted review and affirmed the AFCCA‘s decision as to findings, but reversed as to the sentence and remanded for a new sentence reassessment based on the affirmed findings of guilt. Id.
The AFCCA‘s Second Sentence Reassessment
On October 26, 2015, the AFCCA issued an order stating, “Effective 15 October 2015, Colonel Karen Hecker is attached to AF-LOA/JAJM as the Senior IMA.”2 This order also indicated that the Judge Advocate General was continuing Colonel Hecker‘s appointment as an appellate military judge on the AFCCA. Notice was provided to both the government and defense appellate divisions of Colonel Hecker‘s dual status.
In another unrelated case, United States v. Rivera, the Government filed a Motion for Leave to File Motion for Recusal of Appellate Judge and Motion for Reconsideration, with the AFCCA. The Government argued that Judge Hecker‘s dual appointment status might lead a reasonable person to question her impartiality. Despite this argument, the AFCCA denied the motion.
On April 8, 2016, the AFCCA issued a special panel order listing the appellate military judges that would hear Appellant‘s case on remand. Judge Hecker was not one of the judges. The order did not specify the reasons the panel was not composed of the same judges that had originally heard Appellant‘s appeal. The new panel was composed of Judge Allred, Judge Teller, and Judge Zimmerman.
Appellant objected to the change in panel composition asserting that Congress prohibited a new panel from reconsidering a previous panel‘s decision. Appellant‘s motion was denied. Ultimately, the new panel reassessed Appellant‘s sentence and affirmed the sentence approved by the convening authority. Shea, No. ACM 32225 (rem), slip op. at 3.
We first address the issue of whether the AFCCA erred by assigning Appellant‘s case to a panel that did not include all three of the judges from the original decision.
Appellant argues that the AFCCA improperly changed the composition of the panel that was assigned to review his case on remand. Brief for Appellant at 6-9, United States v. Shea, No. 16-0530 (C.A.A.F. Oct. 14, 2016). The AFCCA is a court of limited jurisdiction and possesses only that power authorized by the Constitution and statute. United States v. LaBella, 75 M.J. 52, 53 (C.A.A.F. 2015) (citing United States v. Daly, 69 M.J. 485, 486 (C.A.A.F. 2011)).
The Courts of Criminal Appeals are established by
(a) Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). . . . The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel.
. . . .
(f) The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Appeals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.
The Air Force Rules of Practice and Procedure provide further guidance on the granted issue:
When a case is remanded directly to the Court by the United States Court of Appeals for the Armed Forces (hereinafter CAAF), it shall, when practical, be referred to the same numbered panel that last decided the case.
A.F.C.C.A. R. 2.2(b). Nothing in the UCMJ, or rules of procedure provide Appellant the right to select a panel, or have his case considered by any particular panel.
In Vines, the accused‘s case was sent to the Army Court of Military Review and was assigned to Panel Four. 15 M.J. at 248. Through administrative or clerical error the case was inadvertently delivered to Panel Five. Id. Naturally, Panel Five was composed of different appellate judges than Panel Four. Id. After hearing the case, Panel Five affirmed the accused‘s conviction. Id. The Vines court determined that it was error for another panel to decide the case absent a change-of-assignment order, however, that error was not prejudicial to the accused. Id. at 249. In the instant case the AFCCA did not err. Unlike Vines, the AFCCA issued a proper order notifying the parties of the change in the panel‘s composition.3
We recognize that, “many reasons exist for a change of assignment of cases ranging from workload of particular panels to reassignment of judges from a panel.” Id. The consideration of Appellant‘s case by any
Circumstances may, however, dictate otherwise, as in the case at hand. Normally, should such an occasion arise, jurisdiction is implicit. Thus, it is analogously said: “A rehearing will not be granted merely because a change in the membership of the court is about to take place or has already occurred; nor will a rehearing be granted because the judge writing the majority opinion was not present or a member of the court at the time of oral argument or the submission of the cause.”
Id. at 606, 38 C.M.R. at 404 (emphasis added) (citations omitted). Based on the cited authorities, Appellant concludes, albeit incorrectly, that he has the right to have his case reviewed by the same appellate judges who initially reviewed his case prior to our remand. Brief for Appellant at 6-13, Shea, No. 16-0530.
The cases cited by Appellant interpreted a prior version of
Accordingly, we conclude that when a case is being reviewed on remand, an accused does not possess a right to a panel composed of the same appellate judges who originally reviewed his case. We therefore hold that Appellant‘s case was properly remanded, assigned, and reviewed by the AFCCA pursuant to
II.
Turning to the unlawful command influence allegation, we conclude that Appellant has not met his initial burden of showing “some evidence,” of apparent unlawful influence. United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017). In order to raise the issue of apparent unlawful influence, an accused must demonstrate the following: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an “intolerable strain” on the public‘s perception of the military justice system because “an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding,” Id. at 249 (internal quotation marks omitted) (citation omitted).
Appellant argues that apparent unlawful influence existed because Judge Hecker was
For reasons explained previously, the AFCCA did not inappropriately remove Judge Hecker from the panel reviewing Appellant‘s case.
Furthermore, Appellant did not present any evidence that a plan or scheme to unlawfully remove Judge Hecker existed. See generally Brief for Appellant at 1-13, Shea, No. 16-0530. Appellant speculates that the AFCCA‘s motives for removing Judge Hecker were suspect based on the court‘s failure to address the issue in its order. Id. at 10-12. However, in a trial context, we have stated:
[T]here must be something more than an appearance of evil to justify action by an appellate court in a particular case. “Proof of [command influence] in the air, so to speak, will not do.” We will not presume that a military judge has been influenced simply by the proximity of events which give the appearance of command influence in the absence of a connection to the result of a particular trial.
United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (alteration in original) (footnote omitted). Appellant‘s speculation in this case amounts to no more than a claim of command influence in the air. There is no regulation, statute, or authority that requires the AFCCA to dictate their reasoning for a change in a panel‘s composition. Vines, 15 M.J. at 248-49 (citing
Accordingly, we hold that Appellant has failed to meet his initial burden of showing some evidence of apparent unlawful command influence.
Decision
The decision of the United States Air Force Court of Criminal Appeals is affirmed.