Court of Appeals for the Armed Forces

Readers may remember that a certificate for review was filed in Downum.

​Wednesday, May 15, 2024
Certificate for Review
 
No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
 
I. WHETHER THE ARMY COURT ERRED IN CONDUCTING ITS LEGAL SUFFICIENCY ANALYSIS WHEN IT HELD THAT UNITED STATES V. CAMPBELL, 50 M.J. 154, 160 (C.A.A.F. 1999), REQUIRES NOT ONLY EXPERT TESTIMONY INTERPRETING URINALYSIS RESULTS BUT THE ADMISSION OF THE UNDERLYING PAPER URINALYSIS RESULTS AS WELL.
 
II. WHETHER THE ARMY COURT ERRED WHEN IT HELD THAT UNOBJECTED TO EXPERT TESTIMONY INTERPRETING THE URINALYSIS RESULTS LACKED RELEVANCE WITHOUT THE ADMISSION OF THE PAPER URINALYSIS RESULTS.
 
III. WHETHER THE ARMY COURT FAILED TO CONDUCT A PROPER FACTUAL SUFFICIENCY ANALYSIS UNDER ARTICLE 66(d)(1)(B).

The Appellee questioned the court's jurisdiction based on a perceived irregularity in the certification process. CAAF then entered an Order to address the problem.

​Interlocutory Order
 
No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575. On consideration of Appellant's motion to amend the certificate for review, Appellee's answer, and Appellant's reply, it is ordered that Appellant shall, within 14 days of the date of this order, file a supplemental brief addressing the following issues specified by the Court:
 
(1) Are the requirements of "appropriate notification" in Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2) (2018) and Rule for Courts-Martial 1204(a)(2), satisfied by routing notification to the Government Appellate Division Chief of each respective service?
 
(2) How may the Judge Advocate General demonstrate compliance with the notification requirements?
 
(3) Is non-compliance with the notification requirements a jurisdictional error?
 
(4) If non-compliance with the notification requirements is not a jurisdictional error, what are the consequences of non-compliance?
 
Appellee will file a supplemental answer within 14 days after the filing of Appellant's supplemental brief. Appellant may file a supplemental reply within 3 days after the filing of Appellant's supplemental answer. Absent extraordinary circumstances, no extensions of time will be granted.

This past Tuesday, CAAF issued another Interlocutory Order resolving the issue in favor of the government. The final two paragraphs (redacted) say,

​Article 67(a)(2), UCMJ, and R.C.M. 1204(a)(2) require a Judge Advocate General seeking to certify issues to this Court to provide "appropriate notification to" the senior leaders of the other services. The Court cannot equate "notification to" with "actual knowledge of" because these are well-recognized as distinct legal concepts. In addition, if a requirement of actual knowledge of the certified issues were required, the qualifier "appropriate" would be rendered superfluous. The Court therefore interprets the phrase "appropriate notification to" simply to mean that the text of the proposed certified issues must be sent to addresses or through personnel that are appropriate for contacting the senior leaders of each of the other services.
 
In this case, Appellee argues that the notices were not sent to appropriate addresses or personnel when they were sent to the chiefs of the government appellate divisions of the other services. Appellee, however, has cited no statute, rule, or regulation requiring notification to be sent to a different address. Appellee has also cited nothing to indicate that the Judge Advocates General of the other services or the Staff Judge Advocate to the Commandant of the Marine Corps desired the Army Judge Advocate General to send notice to a different location. Accordingly, the Court has no basis for concluding that the notification in this case was not appropriate. The Court therefore rejects Appellee's request that the Court dismiss the certificate for review. The Court further has no need to address the other specified issues. And because the initial certificate for review correctly stated that appropriate notification had been sent, the Court also perceives no need for amending the certificate for review. Accordingly, it is ordered that Appellee's request to dismiss the appeal is denied, that Appellant's motion to file an amended certificate for review is denied, and Appellant's motion to supplement the record and Appellee's motion for appellate discovery are denied as moot.

The full Order is available on the New Grants and Summary Dispositions page. We can now look forward to CAAF addressing the certified issues.