Court of Appeals for the Armed Forces

Thursday, September 12, 2024
 
No. 24-0189/AF. U.S. v. Logan A. McLeod. CCA 40374. [I]t is ordered that said petition is granted on the following issues:
 
I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT.
 
II. WHETHER APPELLANT'S CONVICTION FOR ATTEMPTED MURDER OF "SARAH" AND ATTEMPTED CONSPIRACIES TO RAPE AND KIDNAP AB ARE FACTUALLY AND LEGALLY SUFFICIENT.
 
III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ.

​No briefs will be filed​ under C.A.A.F. R. 25

Wednesday, September 11, 2024
 
No. 24-0147/AR. U.S. v. Ryan C. Thomas. CCA 20210662. [I]t is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S BATSON CHALLENGE.
 
No. 24-0175/AF. U.S. v. Daniel R. Csiti. CCA 40386. [I]t is ordered that said petition is granted on the following issues:
 
I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT.
 
II. WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE AH WAS CAPABLE OF CONSENTING – AND DID CONSENT – TO SEXUAL ACTIVITY WITH APPELLANT.
 
III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ.
 
Appellant will file a brief on or before October 11, 2024.

Thursday, June 13, 2024
Order Granting Petition for Review
 
No. 24-0122/AR. U.S. v. Matthew L. Coe. CCA 20220052. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER APPELLANT'S CONVICTION IS LEGALLY SUFFICIENT BASED ON THE LOWER COURT'S STATUTORY INTERPRETATION OF ARTICLE 120(b)(2)(A).
 
No briefs will be filed under Rule 25.

NB:

(1) In United States v. Myers, AFCCA said in fn. 4, that,

"The court is mindful that there are contours of the new factual sufficiency review standard that arguably could impact applications of the rule as discussed by this court and our sister service courts. See United States v. Coe, 84 M.J. 537, 542 (A[rmy] Ct. Crim. App. 2024) (en banc); United States v. Harvey, 83 M.J. 685 (N.M. Ct. Crim. App. 2023), rev. granted, __ M.J. __, No. 23-0239, 2024 CAAF LEXIS (C.A.A.F. 10 Jan. 2024); see also United States v. Csiti, No. ACM 40386, 2024 CCA LEXIS 160 (A.F. Ct. Crim. App. 29 Apr. 2024) (unpub. op.). These contours are not dispositive in this particular case as the evidence does not make determination of factual sufficiency a close call for the specification at issue. Even if we applied our previous factual sufficiency review standard, we would not grant relief as we ourselves are convinced of Appellant’s guilt of the specification at issue beyond a reasonable doubt."

(In Coe, the Army CCA, en banc, said that "The amendment to Article 66(d)(1)(B) applies only to courts-martial, as here, where every finding of guilty in the Entry of Judgment is for an offense that occurred on or after 1 January 2021. United States v. Coe, 84 M.J. 537, 542 (Army  Ct. Crim. App. 2024) pet. pending 2024 CAAF LEXIS 186, 2024 WL 1610778 (C.A.A.F. Mar. 26, 2024).)

(2) Both Csiti and McLeod are from the Air Force CCA, which may explain why there are no briefs in McLeod. Will McLeod be the beginning of a trailer park in the Air Force?

(3) Take a look at United States v. Harvey, 83 M.J. 685 (N-M. Ct. Crim. App. 2023) vacated and remanded 2024 CAAF LEXIS 502, 2024, WL 4128457 (C.A.A.F. Sep. 6, 2024).

This Court may review whether a Court of Criminal Appeals (CCA) applied "correct legal principles" to a factual sufficiency review. United States v. Thompson, 83 M.J. 1, 4 (C.A.A.F. 2022) (quoting United States v. Clark, 75 M.J. 298, 300 (C.A.A.F. 2016)). This Court reviews de novo a CCA's interpretation of a statute. United States v. Kohlbek, 78 M.J. 326, 330-31 (C.A.A.F. 2019). And "when the record reveals that a CCA misunderstood the law, this Court remands for another factual sufficiency review under correct legal principles." Thompson, 83 M.J. at 4.
. . .
[F]or a CCA to be "clearly convinced that the finding of guilty was against the weight of the evidence," two requirements must be met. First, the CCA must decide that the evidence, as the CCA has weighed it, does not prove that the appellant is guilty beyond a reasonable doubt. Second, the CCA must be clearly convinced of the correctness of this decision.
In reaching this conclusion, we have departed from the NMCCA's understanding of Article 66(d)(1)(B)(iii), UCMJ. The NMCCA determined that this provision creates "a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty." 83 M.J. at 693. This view is not consistent with our interpretation above.
. . .
The Government argues that minor interpretive differences are not enough to cause prejudice to Appellant and that we therefore should still affirm the NMCCA. However, we decide that it is proper to remand the case to the NMCCA so that it may apply the amended statute as we have interpreted it. In so doing, we express no opinion on whether the NMCCA should or should not find the evidence in this case to be factually sufficient. Thus, we do not reach the question of prejudice.
​
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court of Criminal Appeals for a new factual sufficiency review, consistent with this opinion, under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (Supp. III 2019-2022).

(4) Take a look at United States v. Scott, 83 M.J. 778 (Army Ct. Crim. App. 2023) set aside 2024 CAAF LEXIS 68 (C.A.A.F. Feb. 1, 2024) (on a Grosty issue*). On remand, affirmed, rejecting Harvey, 84 M. J.583 (Army Ct. Crim. App. 2024) pet. pending 2024 CAAF LEXIS 267, 2024 WL 2963289 (C.A.A.F. May 13, 2024).

*CAAF was persuaded that ACCA had not adequately considered a Grosty issue by, it looks like, failing to include the magic language that the court had considered everything and found no merit in assigned or Grosty "error."

Query:

(1) As for the first issue, do you know if Article 67(c)(4) answers the question? "The Court of Appeals for the Armed Forces shall take action only with respect to matters of law."

(2) Regarding the second issue, the dispute is over the meaning of some of the language in the new factual sufficiency standard. Have some, but not all, definitions been interpreted in Harvey?

(3) In Harvey, CAAF said,

[W]e have departed from the NMCCA's understanding of Article 66(d)(1)(B)(iii), UCMJ. The NMCCA determined that this provision creates "a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty." 83 M.J. at 693. This view is not consistent with our interpretation above.

United States v. Harvey, No. 23-0239, 2024 CAAF LEXIS 502, at *12 (C.A.A.F. Sep. 6, 2024).

Is CAAF suggesting that NMCCA confused the mindset of an appellate judge when turning the first pages of the trial record? When reviewing a record under Article 66, the appellate judges are supposed to be asking a question--do the totality of the facts establish sufficient facts on each element of an offense beyond reasonable doubt, not presuming? But for legal errors, it can be appropriate to apply a rebuttable presumption that there are no legal errors or that there is no prejudice if there is a legal error. After all, isn't that what Article 59 commands?

But, did Congress intend to create a rebuttable presumption that the evidence is factually sufficient, thus, similar to legal error, placing the burden on the appellant to show why the presumption is overcome? Thus, as currently written, a CCA has no obligation to conduct a factual sufficiency review unless the appellant meets the requirements of Article 66(d)(1)(B)? If that's true, assume the appellant does not raise any challenge to factual sufficiency, but in the judge's view there is a serious question of factual sufficiency (1) must the CCA ignore that, or (2) specify the issue?