United States v. Tardif

STATES, Appellee, UNITED TARDIF, Specialist Food

Sean M. Service Class, Guard,

Third Coast U.S.

Appellant. 01-0520.

No.

Crim.App. No. 1141.

U.S. Court of

the Armed Forces.

Argued Nov. 2001. Aug.

Decided

GIERKE, J., opinion delivered the JJ., Court, BAKER, in which EFFRON CRAWFORD, C.J., joined. and SULLI- VAN, S.J., dissenting opinion. each filed a Appellant: Jeffrey C. For Commander brief). (argued and on Good Appellee: For Lieutenant Daniel J. Goet- brief); (argued Chris tle Commander Reilly. P. Salata, T.

Amicus Curiae: Colonel Steven Lind, Major Denise R. Lieutenant Colonel Baines, Margaret Captain B. Karen J. (on brief)—For Army Borgerding the U.S. Appellate Division. Government 220

Judge opinion GIERKE delivered the DICED BY EXCESSIVE POST-TRIAL the Court. DELAY THE WHERE COURT BELOW CONCLUDED THAT THE DELAY WAS general composed A court-martial of offi- BOTH “UNEXPLAINED AND UNREA- appel- cer and enlisted members convicted A SONABLE” AND “CASTS SHADOW lant, contrary pleas, 12-day to his of a unau- OF UNFAIRNESS OVER OUR MILI- thorized absence and assault on a child under TARY JUSTICE SYSTEM.” (two age years specifications), of sixteen 128, in violation of Articles 86 and Uniform below, For the reasons out set we hold (UCMJ), Military Code Justice 10 USC that a Court of Criminal has authori- §§ respectively. adjudged 886 and The ty 66(c), UCMJ, 10 USC provides for a dishonorable dis- 866(e), § grant appropriate relief for un- charge, years, confinement for three total unexplained post-trial delays. reasonable and forfeitures, and reduction to the lowest en- We further hold that grade. convening authority listed The re- 66(e) is distinct from the court’s au- duced the confinement to 24 months but oth- 59(a), UCMJ, thority under Article 10 USC approved erwise the sentence. § to overturn a or sentence ground “on the of an error of Final- law[.]” The Court of Criminal set aside ly, we hold that the court’s conviction unauthorized absence and require relief under Article does not reassessed affirmed the sentence. 55 59(a) predicate holding under Article reconsideration, MJ 666 On materially prejudices “the error the substan- granted appellant days court below 12 tial of the accused.” Because the confinement credit under United States v. court below considered itself constrained (CMA 1984). Allen, 17 MJ 126 59(a) granting from and did and 55 MJ 670 impact not consider the de- granted following This Court review of the lays in its review under Article we issue: remand the case for further consideration. THE WHETHER COAST GUARD Appellate History COURT OF CRIMINAL APPEALS chronology ERRED IN THAT AP- in ap- CONCLUDING events HAD pellant’s PELLANT NOT BEEN PREJU- case is as follows: DATE_ACTION_DAYS ELAPSED 29,1999_Appellant sentenced_0_ October 29, 1999_Confinement deferred_0_ October 5,1999_Deferment ends_7 days_ November Military Judge trial_53 days_

December 1999 receives record of February 7, 2000_Record authenticated_101 days_ 23, 2000_Record (DC)_145 March Days_ served on Defense Counsel April Judge days 2000 Recommendation of Staff Advocate _(SJA) prepared1_ May responds recommendation_198 days_ DC to SJA Authority’s 2000_Convening action_223 days_ June Headquarters, days Oct 2000 Record forwarded to U.S. _Coast Guard_ days November Record received at Coast Guard _Headquarters_ days November Record referred to Coast Guard _Criminal Appeals_ 1. The record does not reflect the date on which fense counsel. the SJA’s recommendation was served on de- days right under Article dice to a substantial focused on the below post- grants relief for unreasonable convening authority’s before it elapsed after the urged delay. It further the record was forwarded action and before that, if hold a Court Headquarters. Concluding Guard Coast been material concludes there has “unexplained and unrea- that the rights, appellant’s substantial to an sonable,” and that it “casts shadow 66(c), under Article appropriate fashion relief military justice system,” our unfairness over findings and setting aside the sen- without held that it was with- the court nevertheless tence. grant Citing this relief. out Hudson, in Court’s decisions United States court’s In contrast to the Coast Guard Jenkins, (1997), 46 MJ 226 United States v. case, Army in the Court of decision (CMA 1993), 287 and United States v. MJ that its “broad has held

Banks, 1979), the court below power prejudice” claims of under to moot appellant concluded that “an must show that grant empowers it to relief for Article delay, matter or unrea- the no how extensive showing delays in the of a excessive absence sonable, rights.” prejudiced his substantial prejudice.” v. Col- of “actual United States Judge at 668. Chief Baum dissented MJ lazo, (Army Ct.Crim.App. from the to not relief for the decision 2000), Wheelus, quoting United States forwarding in the ease to the excessive Army court noted: Appeals. Judge In Chief [Fjundamental fairness dictates that the view, Baum’s no more than 21 months diligence government proceed with due approved. confinement should have been Id. regulatory execute soldier’s statuto- at 669. ry post-trial processing rights and to se- convening authority’s action as cure the Court, appellant argued Before this that given totality expeditiously possible, the applied wrong the court below the standard in of the circumstances that soldier’s case. by focusing of review on Article instead 66(c). Appellant requested of Article that his held, Army happen “That court did case be remanded to the court below for in [this] case.” Id. under in- consideration with holding, Army court in so Collazo unexplained structions that and unreasonable appellant that had “not demon- noted post-trial delay appropriate is an factor for strated actual under Banks.” determining that court to consider what However, Army emphasized court approved,” regardless sentence “should be factors, importance of other such as appellant legal prej- whether has established appellant’s statutory infringement of [t]he udice. [10 under Articles 38 appellant The Government asserted that 854,] §§ USC 838 and the denial of the delay, was not harmed and that prior opportunity to review the record appellant would if be a windfall for he were required by authentication as RCM granted showing sentence relief without Courts-Martial, [Manual for he has been harmed. The Government con- (2000 ed.),] provide a the failure to com- ceded, however, appellant that if an has suf- (to plete copy of the record of trial include falling “prejudice” fered “harm” short of papers) preparation the allied for use meaning within the of Article a Court matters, unacceptable RCM 1105 and the Appeals may grant appropriate preparing 10-month the record of through appro- its review of sentence trial[J 66(c). priateness circumstances, concluded, These Army Appellate The U.S. Government Di- “warrant relief’ the course of court’s vision,' curiae, urged as amicus responsibility this Court to exercise of its hold that a Court of Criminal must to affirm amount of “such determines, preju- be convinced that there was material as it ... rule, CMR at 754. Like the Burton ap- basis of the entire Id., 66(c). Dunlap proved.” quoting placed “heavy rule burden on the diligence, Government to show

Discussion absence of such a dismissed.” Id. [would] Legal Context Banks, supra, Judge Advocate Gen- A legal history necessary brief Army eral of the challeng- certified an issue place granted issue context. This ing the correctness of the lower court’s deci- long recognized Court has accused sion to set aside a conviction and sentence for right timely has a review of the day. violation of the rule Tucker, one and sentence. See United States v. upheld This Court lower court’s decision prospective but announced a abandonment of (“Unexplained delays appellate pro ... [in Dunlap rule and a return to the rule cesses] should not be tolerated the ser vices, requiring they showing prejudice. a of at and will not be countenanced Court”). Banks Although this 93-94.2 abrogated the dra- remedy imposed by Dunlap, conian Burton, In United States v. 21 USCMA recognition Court has not wavered in its of 112, (1971), appellant 44 CMR 166 asked timely review. See right post-trial to to set aside his conviction and Williams, United 302, 55 MJ charges, sentence and dismiss the (2001) (“Appellant right speedy has a to a ground that he right had been denied his to a case.”). post-trial review of his trial, 10, speedy in violation of Article § 10 USC 810. This Court established a Hudson, Jenkins, 227, 46 MJ at presumption of an Article 10 violation when- 288, Williams, supra, again at and this Court pretrial ever an accused is held in confine- requests charges considered to dismiss the ment for more than three months. Under delays post-trial processing. In all rule, Burton “heavy there was a burden eases, these this Court declined to dismiss diligence, on the Government to show and charges, citing relying either or on Arti- charges absence of such a 59(a). cle 118, dismissed.” Id. at [would] 44 CMR Banks, Hudson, Jenkins, Williams, and at 172. this Court was asked to exercise its own In Convening Authority, 67, UCMJ, authority under Article 10 USC 135, (1974), 48 CMR 751 this Court § and to dismiss for unrea- petition considered a extraordinary relief unexplained delays sonable in post-trial and by petitioner filed who remained confine- processing. None of these decisions involved ment at the Disciplinary Bar- authority Ap- of the Courts of Criminal racks for 11 months after his conviction was peals predecessors grant and their to aside, awaiting convening authority’s set 66(c), under Article and none of these deci- rehearing decision whether order a question sions involved the whether charges. dismiss the This Court concluded Appeals prede- Courts of Criminal and their underlying that the same considerations authority grant cessors had relief short of Burton rule for pretrial delays charges. pleadings dismissal of the applied Thus, delays. present this case two issues: presumption held that “a of a denial of (1) Appeals speedy disposition Whether Court Criminal of the case will arise when 66(c) authority grant has continuously the accused is under restraint post-trial delay, convening authority after trial and the relief for excessive wheth- does promulgate “materially preju- er or not the has his formal and final action days appellant’s] rights”; [the within 90 of the date of such restraint diced substantial Id. completion after of trial.” Kossman, diligence”

2. In United States v. ton rule and returned to a “reasonable (CMA 1993), abrogated this Court also the Bur- test. it concluded that Appeals tory of Article a Court of Criminal Whether Review to Congress intended Boards of relief short of dis- they only much of the sentence as charges if it concludes that affirm so missal of the record,” “justified delay. by the whole found to be there has been excessive part all or of a and to set aside interpretation issues involve of Arti- These illegal it is “either because it is or because they present thus cles inappropriate.” likewise has con- Our Court law, issues of which we review de novo. predecessors cluded that the Courts power respon- Appeals had the Criminal Authority Courts to, justice, sibility “in the interests of sub- Criminal legal stantially rigor lessen the of a sen- limited to re- Unlike our Court’s Lanford, 6 USCMA tence.” United States view sentences under Article a Court of has broad modify to review and sentences. consistently recognized the Our Court has part provides pertinent Ap- power broad of the Courts of Criminal follows: peals protect an accused. (CMA 1993). Parker, Appeals] may [The Court of Criminal af- consistently recognized have We guilty

firm such and the charter sentence or such or amount of the justice.” sentence review is “do sentence, as it and fact finds correct law (CMA Claxton, 159, States v. 32 MJ 162 determines, and on the basis of the entire 1991); 394, Healy, United States v. record, approved. should be (CMA 1988). Finally, 395-96 we have consis- history legislative The of Article 66 reflects tently recognized power” the “broad of a congressional power intent to vest broad Appeals Court of Criminal “to moot claims Appeals. legisla- Courts Criminal prejudice by ‘affirming] only findings of such history congressional tive also reflects dis- guilty part and the sentence or such or tinction between review of the lawfulness of a sentence, amount of the as it finds correct appropriateness. and its See determines, law and fact and on the basis of (1949) (“The 98-486, S.Rep. No. at 28 Board record, approved.’” the entire should be aside, may record, any set on the basis of the Wheelus, 66(c); 288, quoting 49 at Art. MJ illegal either because it is Higbie, 12 see also United States v. inappropriate.”). it because is Professor (1961) (recognizing power 30 CMR 298 Morgan, drafting chair of the committee for of Board of Review reduce sentence testified as about follows convening order to moot issue whether au- power Review, predeces- of the Boards of thority charge considered dismissed and Appeals: sors of the Courts of Criminal specification adjudged in his review of the review, now, very board [T]he has ex- sentence). powers. law, facts, may tensive It review sentences; practically, and because the However, power of the Courts of provisions stipulate that the board of re- Appeals Criminal is not without limits. Arti view shall affirm much so of the sen- 59(a) provides: “A cle or sentence of justified by tence as it finds to be may court-martial held incorrect on gives whole record. It the board of review ground of an error of law unless the facts, power ... to review law and materially prejudices error the substantial sentence____ 59(a) rights of the accused.” Article Hearings on 857 and H.R. 4080 Before a S. by Congress preclude intended reversals Comm, of the on Armed Subcomm. Senate for minor technical errors. See United Services, Cong., 81st Powell, 569, 576-77, Taylor, re Jackson v. 353 U.S. accordance with Article (1957), sentencing 1 L.Ed.2d decisions of the Courts S.Ct. views the misearriag- Supreme legislative Appeals his- for “obvious Court reviewed Criminal justice es of or abuses of discretion.” See 3. Remedies Excessive Jones, United States v. Delay Postr-Trial 1994). argument of amicus curiae rais es the additional issue whether a Court of legislative judicial Based on the and re 59(a) history of Articles and we con lief charges short of dismissal of the if it power duty clude that the and of a Court of post-trial delay. argu finds excessive This appro to review sentence longstanding ment reflects concern of our 66(c) priateness separate under Article is and Court and the Courts of Criminal power duty distinct from its to review a remedy required by about the draconian 59(a). legality sentence for Dunlap progeny post- its for excessive 59(a) together, Considered Articles Hudson, delay. trial See 46 MJ at 227 “bracket” the of a Crimi (“[W]e are loath to declare that valid Appeals. nal constrains the proceedings solely are invalid because of de ground “on the reverse lays process trial.”); in the criminal after the broader, error Clevidence, of law.” Article is a United States v. (CMA 1982) three-pronged (Cook, J., constraint on the au dissenting) (dismissing court’s affirm, thority may “burning to affirm. Before it is the barn to kill the Banks, (“The rats”); 7 MJ at 93 certified findings must be satisfied that the (1) question expresses the frustration of the ser law,” sentence are “correct inflexibility vices over the of the “correct in fact.” Even if these first two rule.”); Dunlap, 23 USCMA at prongs satisfied, may are the court affirm (“What (Duncan, C.J., at 757 dissenting) only much so and sentence as today provide Court does a means where a “determines, on the basis of the entire person guilty beyond found a reasonable Powell, approved.” doubt in an hearing escape error-free supra prong pertains at 464-65. The first any sanction.”); Department see also of the and, such, implicates errors of law as it also 27-50-336, Army Pamphlet Army Law 59(a). prongs The second and third yer, Criminal Law Note: and, thus, do not involve errors of law do not Army Collazo: The Ap Court of 59(a). implicate Article Based on this statu peals Target Puts Post-Trial Steel of tory analysis, agree Army we with the court’s (November 2000) Delay, (Army at 37-38 conclusion Collazo that a Court of Crimi Court of Criminal “left with the 66(c) nal under Article options finding prejudice letting a post-trial delay relief for excessive free, rapist go prejudice no prejudice” without a “actual with ratifying sloppy jus the administration of 59(a), meaning the if it deems tice.”). appropriate under the circumstances. Dunlap, Before this Court decided denial at right speedy of the trial resulted dis- Thus, that, in we hold addition to its deter- charges only missal of the if reversible trial legal mination that no error occurred within impossible errors occurred and it was to cure meaning the of Article the court below rehearing those errors at a because of the required was to determine what post-trial delay. excessive See United States approved,” sentence “should be based on all Timmons, 226, 227, USCMA 46 CMR the facts and circumstances reflected in the (1973), In and cases cited therein. record, including unexplained and unrea- Timmons, this Court noted that the court post-trial delay. Accordingly, sonable we purged below had the effect of a trial error necessary a conclude that remand is so that by modifying findings, making dismissal the court below can exercise its au- broad charges of the unwarranted. United 66(c) thority to determine Gray, CMR and, so, (1973), whether relief is warranted if what repeated prin- granted. ciple: relief should be trial counsel at the Finally, we note that ordering a dismissal of

[B]efore protect well-situated to particularly are delay level there charges because by addressing clients interests of their proceedings in the must be some error action post-trial delay issues before rehearing be held requires that which authority. Trial counsel can en- convening delay appellant and that because explanation contains an that the record sure prejudiced presenta- either would be an might appear to be otherwise for what rehearing no or that tion of his case at delay. can Defense counsel unreasonable purpose otherwise be served would useful through of the accused protect the interests continuing proceedings. military judge au- before complaints to the regarded post- Although Dunlap is as convening thentication or to case, delay in that case actual- After and before action. after authentication to order a ly involved the decision whether action, convening authority’s extraordi- 136, rehearing. 23 USCMA at cir- nary appropriate some writs Assuming deciding that Arti- at 752. without Appellate relief under cumstances. through proceedings applies cle 10 last recourse to should be viewed as the trial, stated, failure of the “[T]he this Court vindicate, appropriate, appellant’s where or the Manual for Courts- Uniform Code ap- timely post-trial processing and right to directly de- unreasonable Martial to condemn pellate review. acting lay by convening Decision of trial does not mean that relief the record The decision of the United States Coast against such is unobtainable.” This Appeals is set aside. Court of Criminal Guard “appropriate” that it Court then decided The record of trial is returned to General prejudice adopted presumption Transportation Department of Counsel of the applied pretrial delays in Burton be remand to the Court Criminal delays, along with the sanction light opinion. of this for reconsideration pre- dismissing whenever the Thereafter, apply. Article 67 will sumption was not overcome. Id. 48 CMR at 754. CRAWFORD, Judge (dissenting): Chief Becker, majority interprets Articles (2000), provided following contrary to the in a manner that guidance concerning “speedy remedies for legis- statutory principles of construction in the context of sentence trial” violations intent, well inconsistent with 50 lative as remedy tai- rehearings: “[T]he years practice of established and case law. suffered, appro- harm an lored to the such as majority an incom- doing, In so the offers or, in a where the priate sentence credit case history legislative of plete recitation of the ability has interfered with the defense’s 66(c) ignores prac- Articles and and the hearing, to no to receive a fair a sentence majority’s effects of its decision. The tical punishment at all.” fur- misreading Article 59 not be of should a Unless there has been conclude that the “all-or-noth- ther exacerbated.

We appellant’s rights, remedy post-trial delays laid to violation of an ing” for was substantial may Appeals not use conclude that the rest Banks. We further grant further supervisory to not limited to either their appellate courts are v. Has- giving appel- appellant. United States tolerating the intolerable or an relief to the 103 S.Ct. Ap- ting, 461 U.S. lant a windfall. The Courts of Criminal 66(c) Instead, Article to L.Ed.2d peals have by encourage action those recently corrective approach, re- should apply the Timmons Becker, post-trial delays. Id. at 506 delays, responsible for peated and to 5,103 majority is any 1974. Because the remedy, if is war- n. S.Ct. appropriate tailor an by judicial rulemaking1 ranted, engaging in broad circumstances of the case. to the * result). C.J., (2002)(Crawford, concurring Key, 57 MJ 246 n. 1. See United 66(c) amending expand Contemporaneous History. the Article Code to Article thereby Appeals contract es- provides and Article and that the of Criminal sentially creating power equity in only a of the “may ... affirm the sentence or such below, respectfully I must dissent. part of or amount the as it finds determines, in law and fact and on correct objectives The of and the the the basis of the entire Army Court of approved.” Collazo, (Army Ct.Crim. App.2000), are well intentioned but lack a establishing By the appellate intermediate wholeheartedly I doctrinal basis. endorse courts, Congress intended to eliminate com- goal preventing unexplained of unrea- influence, mand such as a send- commander post-trial delays, sonable but believe there is ing acquittal back a court-martial achieving a better means of this end without Hearings Be- reconsideration. on H.R. 2498 violating separation powers of doctrine of Comm, fore a Subcomm. of the House principles judicial and established for bodies. Services, (1949)(the Cong., Armed 81st at 608 starting point interpreting The a stat- “Hearings”). The courts of review could ex- is, course, plain meaning of ute questions law, only ques- amine not but addition, a statute. there are number of fact, preclude tions of command influence. provide engag- factors a framework for Additionally, Id. Article 66 was intended statutory ing interpretation. These in- grant the Courts of Criminal discre- contemporaneous history clude of the tionary modify power sentences. These statute; interpretation contemporaneous courts would ensure that there a uniform statute; legislative subsequent of the and they Code because would examine courts- or inaction regarding action statute. throughout martial sentences from world. provide background These factors Hearings emphasized, contemplat- “It is customs, existing practices, and power [under 59] ed that this 66 and Articles obligations against which to read the statute. uniformity will be exercised to establish statutory Applying principles these inter- throughout sentences the armed Id. forces.” 59(a) yields pretation to Articles at 1187. by different result from that reached Morgan’s This is reinforced Professor majority. commentary provides: to Article which 66(c) provides as follows: finding of Review shall affirm Board it, In a case referred to Court of of an guilty offense or a included lesser only may act with re- (see 59) offense if it determines spect findings ap- weight of that the conforms to the authority. proved convening It and that no the evidence there has been may guilty affirm such materially prejudices error of law which sentence or such or amount rights of the substantial the accused. sentence, as it finds correct in law and fact Commentary. The Board determines, entire basis aside, record, any set on the basis of the record, approved. should be consider- sentence, it of either because is record, evidence, ing the may weigh It illegal inappropriate. or because it is witnesses,

judge credibility of de- power contemplated that this exer- will be fact, questions of termine controverted uniformity cised to establish of sentences recognizing that the trial court saw and throughout the armed Article forces. See heard witnesses. 67(g). Additionally, provides: Article Text, Military of Ref- Uniform Code Justice: may

A or sentence of court-martial Commentary the Re- erences and based on ground not held incorrect on the of an port of the Committee on a Uniform Code materially of law unless the error error Defense, Secretary Military to the prejudices of the ac- Justice substantial at 94 cused. delay, even tences because meaning Article 66 is that the plain prejudiced. appellant was not only though an “affirm based on findings ... and sentences” In in- Interpretation. Contemporaneous interpreted this have “entire record.” We should we terpreting Articles Appeals, of Criminal to allow Courts statute for the last 50 their construction examine trial, modify on the entire record

based service by and intermediate years lack of factual charges based on a or dismiss reached the con- appellate courts. None has sufficiency, as reassess sentences as well in Army court Colla- reached clusion inappropriate. But we have not to be found change Additionally, there has been no zo. go allowed these courts to outside precipitate a statu- might to the statutes nonjudicial considering example, by two fact this tory reinterpretation. inadmissible at trial. punishments that were previously proposed is remedy has not been Redhouse, 53 MJ See United States not the intent of good that such was evidence (2000)(summary disposition). have we Nor Congress. Appeals to of Criminal allowed Courts See, punishment. grant suspension of the If Con- Legislative Action or Inaction. (CMA Darville, e.g., remedy which gress wanted establish 1978). sanctions, have done so it would enactment, or at the time of the UCMJ’s Additionally, plain meaning of the stat- dissatis- any subsequent time that it became in enactment ute the context its from the courts concern- fied with decisions support majority’s position. does not changes to ing delays. Numerous grant Congress wanted to discretion- When by Congress have been enacted the UCMJ ary it knew power unrelated to years, many response over the last 50 60(c)(2), UCMJ, 10 to do so. See Art. how changes have judicial decisions. No various 860(c)(2)(in acting § or USC impact of forthcoming regarding the been ..., “convening authority [or his majority’s interpreta- post-trial delays. The discretion, may approve, disap- her] sole statutory simply not relate to the tion does commute, prove, suspend or the sentence objectives sought by Congress. 60(c)(3)(A) part”); whole or in see also Art. (convening authority may act “in his [or her] practical There are rea- Practical Effects. dismissing sole discretion” authority giving for not to the lower sons specifications). assertion, Contrary majority’s to the courts. final will not rest with Authority granted to the Courts of Appeals. Final review grant unrelat- windfalls required to determine whether Court will be or act in their “sole discre- ed to their discretion. the lower courts abused courts be- tion.” While the nor this Court Neither the courts below by referring low has been commented on placed position of determin- 800-pound gorilla,” “proverbial them as the delay, request ing what constitutes they may not act on their own whim. United justify delay, what con- what circumstances Parker, 269, 273 circumstances, extraordinary and so stitutes 1993)(Wiss, J., concurring). We have not flexibility or do not have the forth. We granted power these courts ability gather facts that the President and post-trial claims of ineffective to resolve exercising their rulemak- advisors have his by making findings of assistance of counsel authority. ing USC conflicting from the fact based on affidavits § to the is a clear Ginn, See, parties. e.g., United States v. procedural these President to formulate upon plain lan- Based MJ flirting not with amend- rules. We should be legislative guage of the statute and the histo- Manual. That role Congress, ing a statute or the ry, improbable that if it is Congress the Execu- asked, should be left for and to the would to reduce sen- tive Branch. (NMCMR 1994). allowing shortsighted Henry, would be in not We President to triggering and the services exercise There can then be an automatic rulemaking authority days point their within established mechanism at 120 or some other processes. agree Judge I with Senior Sulli- time in order to determine whether convening van that neither this the courts has Court nor taken action. ought supervisory to exercise authori- below fitness evaluation standards need to be ty Rulemaking changed: delays, the error when is harmless. when there are substantial Congress by responsible the Executive Branch or person or allows an evaluation flexibility persons performance. reflect such planning and advance and should place through avoids distortion takes If to the Legislative we look Executive and judicial rulemaking. Once the rules are en- action, take Branches to we will ensure conti- acted, they subject judicial will be review. to nuity stability delays in handling and relative will ensure We that servicemembers are not actions. The difficulties associ- prejudiced by post-trial delays. ated with court-crafted rules can be seen previously interject published sought Twice we have hundreds cases and more through injudi- unpublished than a delay ourselves into issues of thousand cases that were subsequent to rulemaking. v. Bur- decided Burton. cious See United States ton, (1971); 21 USCMA CMR reasons, foregoing For I all of would Convening v. Authority, USCMA affirm the court below. 135, 48 CMR 751 both Burton As to Dunlap, recognized we the error and SULLIVAN, Judge (dissenting): Senior prior overruled our cases. See Kossman, (CMA 1993); 38 MJ 258 I this see no reason to reverse and remand Banks, (CMA 1979).2 7 MJ 92 I preju- case. would affirm. There was no later recognize

These decisions that rules appellant dice from the delays by regarding the Ex- should be made case, appellate and no relief is otherwise Congress, ecutive Branch or required by law. See UCMJ. or appellate Court the intermediate courts. today majority equity-type creates a new supervisory power for the Courts of Criminal The failure to take in this action case will judicial activism, I Appeals. This is legislative purpose not frustrate the behind dissent. fact, Article 66. leaving action granted following This review on the Congress or the President will ensure that question of law: objective. achieves its This al- protected obligations lows be THE WHETHER COAST GUARD through rulemaking process rather than OF CRIMINAL APPEALS COURT judicial through efforts to amend Code. AP- ERRED IN CONCLUDING THAT HAD PELLANT NOT BEEN PREJU- Certainly there should be no unreasonable BY TRIAL DICED EXCESSIVE POST unexplained delays. rules will But these THE DELAY COURT BELOW WHERE appropriately adopted Legis- more THAT THE DELAY WAS CONCLUDED Branch, or lative Executive which are AND UNREA- BOTH “UNEXPLAINED position to best decide when how AND A SONABLE” “CASTS SHADOW judge staff chastise advocates and others OF UNFAIRNESS OVER OUR MILI- Judges the Executive Branch. TARY JUSTICE SYSTEM.” immediately required notify the service Clerk Court or some central We review Court punitive prejudice resulting post- a sentence that from when includes decision on discharge year and one confinement a de novo basis. more See United 1979). Banks, imposed. been It is See United States Williams, pay beyond expiration also United States v. sentation to entitlement of (2001)(no granted service). there because was no of term of repre- since was no there spirit of this court’s the letter and the both that the Government key to this case both laudable, nothing in there is precedents is appellant has not that appellant concede requires a history court which post- of this prejudice from the material suffered on its hands while court to sit warrant service delay in this case so as to trial integrity compromises the practice which conviction. See United States reversal of his eyes (1997); justice Hudson, military system States v. 46 MJ 226 1993). Jenkins, to flourish. is allowed v. 38 MJ 287 world post- agree I that the both court below added). (emphasis Final Brief at 31 legally preju delay in this case did not trial carefully opinions of the I have read required by our case law for appellant dice as Appeals in this case of Criminal Gray, v. appellate relief. See United re- not overlooked its conclude that it has 443, 445, 47 CMR USCMA 66(c). origi- In its sponsibility under Timmons, (1973); v. USC United States stated, “Moreover, on the basis opinion, nal it (1973). 226, 227, 226, 227 MA 46 CMR that we have determined of the entire however, argues Appellant, approved.” 55 MJ at should be this sentence legal requiring a decisions Court’s of its court was well aware lower do not bind the Court prejudice for reversal approval power and did not state sentence preclude it from of Criminal considering simple post- from was barred granting a lesser form of sentence many among delay as one factor trial reduction) (confinement simple based on a appropriate Ab- determining an sentence. post-trial delay. showing of unreasonable statement, argument appellant’s sent such Timmons, supra States v. But see United overstep pure speculation and invites us standing (holding “post-trial delay, alone jurisdictional bounds. See United States our proceed- prejudicial error in the trial without 298, 300, Higbie, 30 CMR USCMA require ings, not relief on otherwise will (1961); see also United States Christo- sentences”). proper findings and He cites 231, 236, pher, 13 “unique” approval powers of the sentence appellate lower court under Article UCMJ, legal authority action. as for such addition, disagree appellant that I with Collazo, States v. See also United powers approval of the Courts the sentence (Army Ct.Crim.App.2000). used to “com- problem unexplained bat the recurrent

Appellant’s particular argument in this re- post-trial delay in the review and inordinate gard is as follows: Arti- of courts-martial.” Final Brief at 10. Appellant “legal that a does contend UCMJ, expressly cle limits the Courts error” has been committed such as would unique Appeals’ exercise of this Yet, dismissing charges. warrant sentencing power in the “entire to matters post ruling the lower court’s that the trial before them. This limitation record” unexplained was “both and unreason- approval powers under Article and “casts a shadow of unfairness able” with the intent of Con- is consistent military justice system,” over our his case military provide ac- gress to each individual something quite possibly one in which specially cused “a suited sentence.” See sentence should have less than the entire Stene, 7 USCMA Court, approved. The Guard been Coast Clearly, its exercise CMR however, by focusing this court’s Article remedy judicial unevidenced as a tool to review, appears to have standard of justice system problems military responsibility overlooked its statutory pur- large with this 66(c). is inconsistent explicitly the court did not While so, pose vires.” and “ultra See United apparent say it is from 499, 505-07, Hasting, 103 S.Ct. 461 U.S. the court viewed decision itself (holding that the post 76 L.Ed.2d 96 powerless any to award relief for preserved the doctrine of harm- Appellant had not estab- interests because casually ig- lightly legal prejudice. While adherence to less error cannot lished 230 394, Healy, order 396

nored in to chastise what court viewed also United States 26 MJ (CMA 1988). view, prosecutorial overreaching). my appel- In the service it exer- late court abuses its discretion when Finally, majority I am aware that a this sentencing approval power delib- cises its in past quite broadly Court in the construed derogation legal precedent. of our See erate 66(c), UCMJ, provide Article to to a Court of Dukes, 71, generally States v. MJ United 5 essentially Criminal an unreviewable (CMA 1978). 73 justice” military to do a “carte blanche Claxton, See accused. United States v. Accordingly, urge I again this dissent and (CMA 1991). 159, Claxton, this to the Court to return rule of law as enacted approved appellate the service court's Court Quiroz, by Congress. See United States v. ignore the law in order decision of waiver (Sullivan, J., supra dissenting); at 345 Unit grant sentencing accused for relief to an Waymire, ed unobjeeted evidentiary occurring error approval CMR The sentence agree a during hearing. sentence I did not powers given appellate the service courts equi- with this movement to create courts unique, equally it that are indeed but is clear law, ty, in sys- not of our court subordinate Congress did not envision them as stan Claxton, supra tem. United States v. at 165 supervisory remedy judicially dardless (Sullivan, C.J., concurring part and in the justice perceived inequities military result). recently, More States v. United Sothen, system. See United States v. Quiroz, (2001), majority 338-39 (2001); Christo United States v. permit Court even went so far as 236-37, pher, at at 236- 13 USCMA appellate ignore court below to the law of Moreover, 237. when the multiplicity granting findings relief while Appeals unique ap exercise their sentence citing vaguely appellate the service court’s UCMJ, proval 66(c), powers under Article 66(e), power under Article UCMJ. they do so based on should the entire aberrant This line of decisions should not and consistent with constitutional and statu here to be extended hold that the Courts of law, tory preced as well as our decisional Appeals may also flout law on Higbie, ent.* See States v. 12 USC discharging their sentence 300; MA at 30 CMR at approval function. See United States v. Claxton, (Sullivan, C.J., supra at 165 concur Hutchison, (2002)(holding 57 MJ 231 a Court result). ring and in the Appeals may exercise not its sum, I believe the was Court below approval powers sentence to criticize a state right it stated in original opinion when its conviction). UCMJ, 66(c), court Article this case: by Congress means for a intended as a guided by opinions are to be [W]e unpopu- court subordinate to evade or avoid for the Armed Court legal precedent lar of this Court. See United subject by [post-trial Forces on Sills, This is convening authority]. Applying spirit the letter neither nor the forth, we find standard Court has set 66(c), Supreme nor is what the directly to the attributable by “power meant determine established, delay in this case has not been appropriateness.” sentence Jackson v. no relief and thus is warranted. Taylor, 353 U.S. 77 S.Ct. following (holding The court below was L.Ed.2d majority making new permits reassessment of service the law. The now is found); law, appellate legal Congress. court left to process after error see best * post-trial delay prejudicial remands this case for reconsidera- able be remedied disagree appellate I the first tion on basis that the below confinement credit. with that, majority’s holding conclude under the misunderstood its broad remand, clearly holding proceeds second dicta UCMJ. It then to redefine the post-trial delay law unreason- not be decided in this case. and hold that which should

Case Details

Case Name: United States v. Tardif

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 30, 2002

Citation: 2002 WL 2008232

Docket Number: 01-0520/CG

Court Abbreviation: C.A.A.F.