On Tuesday, the CAAF heard argument in U.S. v. Brown.
The issue is whether a CCA can entertain extraordinary relief in a post-trial session in a case not entitled to automatic review under Article 66 but which may be reviewed under Article 69(d) if TJAG refers the case to the CCA.
The following analysis was prepared and written by a guest author, LT Michael Wester, JAGC, USN. LT Wester represents First Sergeant Brown.
First Sergeant Brown was found guilty of abusive sexual contact for grabbing the buttocks of a female soldier, and was reduced to E-7. Following his trial, the Convening Authority ordered the military judge to reconsider three evidentiary rulings, including the judge's failure to give a mistake of fact instruction on whether First Sergeant Brown mistook the victim for his girlfriend.
At the hearing, the judge refused to recuse himself after the court reporter, bailiff, and others stated the military judge behaved unfairly toward defense counsel during trial. And after the recusal motion was litigated, the military judge refused oral argument and ended the hearing despite earlier saying he would allow oral argument. Later that day, he also admitted the hearing made him uncomfortable.
First Sergeant Brown then petitioned the CCA for extraordinary relief under the All Writs Act, 28 U.S.C.§ 1651, asking, inter alia, the CCA to remove the military judge so that an unbiased judge could preside and rule over his post-trial hearing.
The CCA, sitting en banc, determined that First Sergeant Brown's case was potentially eligible for Article 69(d), UCMJ, review. At the time of First Sergeant Brown's trial, Article 69(d) stated the following:
A Court of Criminal Appeals may review, under section 866 of this title (article 66)—
(1) any court-martial case which
(A) is subject to action by the Judge Advocate General under this section, and
(B) is sent to the Court of Criminal Appeals by order of the Judge Advocate General; and,
(2) any action taken by the Judge Advocate General under this section in such case.
In issuing a writ of mandamus removing the military judge, the Navy-Marine Corps CCA cited FTC v. Dean Foods, 384 U.S. 597, 603 (1966), which held that extraordinary relief may issue under the All Writs Act under the theory of potential jurisdiction "where an appeal is not then pending but may later be perfected." The CCA also relied on Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012), where the CAAF found that a biased military judge was the proper basis for a petition for extraordinary relief. The CCA reasoned that since Article 69(d) states that a CCA "may" review First Sergeant Brown's case if TJAG ultimately sends it there, potential jurisdiction applied, and a writ could issue.
The CCA distinguished the case from United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015), in which the CAAF held there was no jurisdiction under the All Writs Act where an appellant petitioned TJAG for a writ of error coram nobis following a court-martial that, like First Sergeant Brown's, was not entitled to automatic CCA review, but where, unlike First Sergeant Brown's, TJAG refused to send the case to the CCA and the convictions had already become final.
C.A.A.F. Oral Argument
On Tuesday, the Government argued that the doctrine of potential jurisdiction only applies where it is possible the case may receive automatic review under Article 66(b) or where the appellant waits until the convening authority's action, submits a petition to TJAG under Article 69, and then petitions the CCA for extraordinary relief -- before TJAG has acted on the petition. But since First Sergeant Brown's court-martial is in the middle of a post-trial session and there are no approved findings, the Government argued there was no potential jurisdiction here.
Judge Sparks asked Government counsel what recourse there would be if significant legal issues arise during or after a court-martial that is not entitled to automatic review but where the petitioner waited until after his trial to petition TJAG, and TJAG declined to send the case to the CCA. In response, Government counsel acknowledged the case law was not sufficiently clear to address this matter.
Judge Ohlson asked whether an accused in Judge Sparks' hypothetical could seek relief in an Article III court. In response, Government counsel stated that would depend on how this Court interpreted the extent of the CCA's jurisdiction under Article 69(d).
Senior Judge Effron then asked whether the Government could seek a remedy of extraordinary relief if the roles were reversed. In response, Government counsel stated there was "no statutory construction" that would allow CCA intervention in such a case.
Senior Judge Effron also asked what would happen if a witness' (not a victim's) mental health records were about to be released in violation of M.R.E. 513, which gives a witness-patient the right to assert a privilege over the records. The Government stated there would be no avenue for CCA intervention.
Chief Judge Stucky appeared skeptical of potential jurisdiction in this case. He asked appellate defense counsel why this case was not similar to Arness. In response, counsel cited Noyd v. Bond, 395 U.S. 683 (1969), where the Supreme Court formally established that the All Writs Act applies to military appellate courts for cases "which may ultimately be reviewed by that court." Counsel stated that since Arness' convictions were final, they could not be reviewed by a military appeals court, unlike First Sergeant Brown's case.
Counsel also cited In re Tennant, 359 F.3d 523 (D.C. Cir. 2004), in which now-Chief Justice Roberts described All Writs Act jurisdiction thus: "Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being 'within [our] appellate jurisdiction' -- however prospective or potential that jurisdiction might be."
Judge Ohlson asked about how the general principle that Article I jurisdiction should be read narrowly applies in this case. In response, counsel argued that the All Writs Act still applies to Article I courts and that Article 69(d) should be seen as showing Congress' intent to allow appellate jurisdiction over extraordinary relief petitions even in cases not entitled to automatic review.
Judge Maggs next asked how the Court should respond to the Government's claim that in creating Article 69(d), Congress only wanted appellate review of such cases to occur if TJAG referred the case to the CCA. In response, counsel reiterated that Article 69(d) should be seen as Congress' intent to expand appellate review even of cases with lesser sentences. Counsel argued that the fact that Congress created a discretionary appellate scheme only matters for purposes of the All Writs Act where an accused, like in Arness, seeks recourse to the All Writs Act only after first unsuccessfully seeking relief under Article 69(d).
Judge Sparks asked whether First Sergeant Brown petitioned the CCA out of concern that his case would not ultimately be referred to the CCA by TJAG. In response, counsel stated that while that may have been the case, since the CCA only addressed the issue of his petition that was the proper basis of extraordinary relief -- removal of a biased military judge -- and did not reach the remaining issues, its limited intervention in this case was proper.
Judge Ohlson next stated that counsel appeared to be "muddling the line" between the fairness of allowing a biased judge to remain on the case with the appellate jurisdiction as set out by Congress. In response, counsel referred to the All Writs Act itself and United States v. Howell, 75 M.J. 386 (C.A.A.F. 2016), where the CAAF wrote that "the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court." (citing Dean Foods, 384 U.S. at 603). Counsel also cited Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, n.7 (1985), where the Supreme Court described how the All Writs Act has been allowed to "fill a gap in federal statutes" in some cases.
Counsel also stated that automatic review under Article 66 was still possible if a mistrial in the post-trial session were declared and a rehearing with new charges were added in a follow-on court-martial. In his brief, counsel cited United States v. Beatty, 25 M.J. 311 (C.M.A. 1987), where the Court of Military Appeals referred to a rehearing as a "continuation of the former proceeding." (citation omitted) In response, Chief Judge Stucky suggested this was not true since a rehearing would result in a new court-martial.
The final question was posted during rebuttal argument, when Judge Maggs asked Government counsel why potential jurisdiction applies in a case like Hasan, where at the time of the petition it is possible the case will end in acquittal, but not in First Sergeant Brown's case. In response, Government counsel stated that in Hasan's case, the potential for automatic review of the case was still available, unlike in First Sergeant Brown's case.
LT Michael Wester
Guest Author, Counsel for First Sergeant Michael J. Brown