The general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

1. De Novo Review for Legal Issues:
   • CAAF generally applies a de novo standard of review when considering legal issues presented under a certificate for review. This applies to questions of statutory interpretation, constitutional law, and other legal determinations made by the lower courts.
   • See United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012) (“Questions of law are reviewed de novo.”).
2. Deference to Factual Findings:
   • When the case involves factual determinations by the service courts of criminal appeals (CCAs), CAAF generally applies a clearly erroneous standard. The court gives deference to the lower courts’ factual findings unless they are unsupported by the record or clearly erroneous.
   • See United States v. Burris, 78 M.J. 280 (C.A.A.F. 2019) (“We will not overturn the factual determinations of the lower court unless they are clearly erroneous or unsupported by the record.”).
3. Abuse of Discretion for Procedural and Evidentiary Rulings:
   • When reviewing matters involving procedural decisions, evidentiary rulings, or discretionary rulings by the trial court (such as rulings on expert witnesses, sentencing decisions, or admission of evidence), CAAF applies an abuse of discretion standard.
   • See United States v. Feliciano, 76 M.J. 237 (C.A.A.F. 2017) (holding that evidentiary rulings are reviewed for abuse of discretion).

Limitations on CAAF’s Review Authority

• CAAF’s review is limited to the specific issues certified by the JAG unless the accused also files a petition for review on separate issues under Article 67(a)(3), UCMJ.
• If the CCA’s decision is based on independent grounds not related to the certified issue, CAAF may decline to rule on the issue.
• CAAF does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency.

Precedents from CAAF Regarding Government Certificates of Review

• United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008): CAAF’s authority under a government certificate of review is limited to the specific issues certified by the JAG.
• United States v. Adams, 63 M.J. 223 (C.A.A.F. 2006): The lower court’s ruling will generally be upheld unless it is “arbitrary, capricious, or an abuse of discretion.”
• United States v. Jones, 78 M.J. 37 (C.A.A.F. 2018): When a case presents a mixed question of law and fact, the legal conclusions are reviewed de novo, while the factual findings are reviewed for clear error.

Conclusion

When CAAF reviews a case under a government certificate of review, it generally applies:

• De novo review for pure legal questions.
• Clearly erroneous standard for factual determinations.
• Abuse of discretion standard for procedural and evidentiary matters.

An important issue in such “appeals” is whether the prosecution is asking CAAF to find new facts or reinterpret the facts–its complex, and something we as military defense lawyers are familiar with.

A key appellate case supporting the proposition that the Court of Appeals for the Armed Forces (CAAF) does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency is United States v. Wheeler, 76 M.J. 564 (C.A.A.F. 2017).

Rule from Wheeler (2017)

In United States v. Wheeler, CAAF reaffirmed that it does not engage in reweighing evidence or making independent determinations of witness credibility, stating:

“It is the duty of the factfinder, not this Court, to determine the credibility of witnesses and weigh the evidence presented at trial. We will not disturb such findings unless there is a clear legal error or the findings are unsupported by the record.”

— United States v. Wheeler, 76 M.J. 564, 568 (C.A.A.F. 2017).

Other Supporting Cases

• United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017):
  • Held that CAAF does not reassess credibility determinations unless there is a legal deficiency, noting that the fact-finder’s determinations are given great deference unless unsupported by the record.
• United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007):
  • Stated that appellate courts do not reweigh evidence but rather assess whether the court below had a basis in law and fact for its conclusions.
• United States v. Satterly, 74 M.J. 544 (C.A.A.F. 2015):
  • Affirmed that CAAF does not second-guess factual findings or witness credibility assessments unless they are “clearly erroneous” or based on incorrect legal standards.

Conclusion

CAAF follows the principle that credibility determinations and factual findings rest with the factfinder (trial court or CCA), and appellate review is limited to assessing whether there was a legal deficiency, such as insufficiency of evidence, misapplication of law, or due process violation. The case of United States v. Wheeler, along with Rosario and Beatty, directly supports this appellate principle.

A most interesting questions is what can CAAF review and how may it do that when a CCA has dismissed a charge because it is not factually sufficient to support a finding of guilty–stated another way, the appeals court is saying the person should not have been found guilty. The Government likes to certify these cases because it doesn’t like the result.

When the certified issue relates to a Court of Criminal Appeals (CCA) finding of factual insufficiency, the U.S. Court of Appeals for the Armed Forces (CAAF) applies a deferential standard of review and does not reassess the factual sufficiency of the case de novo. Instead, its review is limited to determining whether the CCA applied the correct legal standard and whether its decision is clearly erroneous or unsupported by the record.

Standard of Review for a CCA’s Factual Insufficiency Determination

Under Article 66(d), UCMJ (10 U.S.C. § 866(d)), CCAs are required to conduct a factual sufficiency review by independently weighing the evidence and determining whether the conviction is correct beyond a reasonable doubt. If a CCA finds the evidence factually insufficient and sets aside a conviction, CAAF’s review of that decision is highly deferential.

• United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002):
  • CAAF does not have the authority to review a CCA’s factual sufficiency determination de novo. Instead, it reviews whether the CCA applied the correct legal standard and whether its factual determination is clearly erroneous.
  • “Once the Court of Criminal Appeals determines that the evidence is factually insufficient, we are bound by that determination absent clear error or application of an erroneous legal standard.”
• United States v. Smith, 76 M.J. 524 (C.A.A.F. 2017):
  • Reaffirmed that CAAF does not reweigh evidence or reassess credibility when reviewing a CCA’s factual sufficiency determination.
  • “The Courts of Criminal Appeals have unique fact-finding powers under Article 66, UCMJ, which we do not disturb unless their decision is clearly erroneous or based on a misapplication of the law.”
• United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010):
  • Held that CAAF’s review of a CCA’s factual sufficiency determination is limited to ensuring that the CCA applied the correct standard under Article 66, UCMJ, and does not substitute its own judgment for that of the CCA.

Key Points About CAAF’s Standard of Review in Certified Cases Involving Factual Insufficiency

1. Highly Deferential Standard:
   • CAAF does not reassess factual sufficiency but only reviews whether the CCA applied the correct legal standard.
2. Clearly Erroneous Review:
   • CAAF will only reverse a CCA’s finding of factual insufficiency if it is clearly erroneous or unsupported by the record (Washington, Smith).
3. Legal Standard Review:
   • If a CCA misapplies Article 66(d), UCMJ, or fails to properly conduct a factual sufficiency review, CAAF can intervene (Nerad).

Conclusion

If a government certificate for review challenges a CCA’s factual insufficiency determination, CAAF does not reweigh the evidence but only ensures the CCA applied the correct legal standard and that its decision was not clearly erroneous. This principle has been upheld in Washington, Smith, and Nerad.

Would you like a case-specific analysis or further discussion on a particular aspect–contact the military defense lawyers at Cave & Freeburg, LLP, and we’ll see if we can help.

A federal judge has granted a third request for additional time to file a brief in an appeal for Timothy Hennis.

Janes has a report on the USS SAN ANTONIO court-martial — Defect-ridden USS San Antonio should not have sailed, court martial told

The court martial of a US Navy officer accused of negligence following a fatal small boat accident focused as much on design flaws in one of the navy’s newest ships as on the officer’s history as a leader.

Stars & Stripes reports:

An Air Force staff sergeant who advertised his baby-sitting services to the Kaiserslautern military community and touted his compassion for children in an online forum pleaded guilty Thursday to multiple counts of raping and molesting three young girls in his care over the last year.

Air Force Times has a little more on the Colonel Roop saga.

Life in the 11th Wing, by most accounts, was simply miserable when former Col. Jon Roop was in charge. He threatened senior officers with their careers. He stood inches from lower-ranking airmen, attacking them so viciously that some broke down in tears. He dropped the F-bomb for effect.

A Little Rock Air Force Base airman lost his stripes Friday and was ordered to jail for a month after being found guilty of assault for whipping his stepdaughter with a belt and an extension cord, but the military court stopped short of kicking him out of the service.

KWCH News 12 reports:

The Air Force will convene a general court martial in the case against Tech. Sgt. David Gutierrez. A court martial date of Jan. 10, 2011, has been set by the docketing office in Washington, D.C. The charges are based on allegations Sergeant Gutierrez engaged in unprotected sexual relations with multiple people in and around Wichita. The military says Gutierrez did not tell them he is HIV positive.

Military.com also reports this Whiteman AFB court-martial as pending.

In United States v. Medina, CGCCA reduces two months (of a served sentence) for post-trial delay in accordance with United States v. Tardiff, 57 M.J. 219 (C.A.A.F. 2002).

The Guardian (UK) has a short report on Wikileaks:

Britain’s role in the alleged torture and unlawful killing of Iraqi civilians may be the subject of legal action following the publication of nearly 400,000 leaked military documents by the website WikiLeaks. British lawyers said the classified US army field reports embroiled British as well as American forces in an alleged culture of abuse and extrajudicial killings in Iraq. Solicitor Phil Shiner of Public Interest Lawyers, appearing alongside WikiLeaks founder Julian Assange at a press conference in London today, said some of the deaths documented in the reports may have involved British forces and could now go through the UK courts.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

probably have resulted in “a substantially more favorable result for the accused.”

Apparently

Through the clemency process after trial, the trial defense counsel requested the CA set aside the conviction or grant a new trial. The request was based upon a statement, dated 8 April 2009, provided to the defense by TS, a co-worker of JH and TB. In this unsworn statement, TS indicated that TB had told her that what happened between the appellant and TB was not rape and had been consensual.

SFExaminer.com reports:

A Fort Stewart soldier charged with killing two members of his Army unit in 2008 is due back in court for a hearing on whether the military should pay for his defense team to travel to Iraq. . . . to interview Iraqi witnesses and investigated the crime scene. Prosecutors have said the trip would be unnecessary.

I hope the trial counsel is not saying the trip’s unnecessary because the CID did such a great job. Got one now where the CID has thoroughly spoiled the evidence through mishandling.

MYNorthwest reports (this is Ramrod Five related):

There is mounting evidence some of the soldiers might have been pressured into committing the crimes, according to attorney Eric Montalvo. A Gulf War veteran, Montalvo represents another one of the accused killers, Adam Winfield. Montalvo claims there was a clear ringleader in the group: Staff Sergeant Calvin Gibbs, who out-ranked the others in their unit in Afghanistan.

Seems like there’s a lot of finger pointing at SSgt Gibbs, characterized by the Winfield defense

“[I]n a serial killer, category.”

The Beverly Hills Courier reports on another “Veteran’s Court.”

Criminal cases against military veterans charged with nonviolent felonies will start to be heard by a Los Angeles Superior Court judge today. The pilot program is meant to give a second chance to veterans who may have gotten into trouble due to conditions related to their service, such as post-traumatic stress syndrome, brain injuries and other mental conditions. Orange County has a similar program, which mirrors other veteran courts that have sprung up across the nation.

FayObserver.com reports:

A military judge has agreed to delay the court-martial of a Fort Bragg soldier accused in a series of rapes and break-ins on post and in Cumberland and Hoke counties, officials said. The court-martial of Spc. Aaron M. Pernell, 23, of Tulsa, Okla., had been scheduled to start Sept. 27, according to court dockets. Instead, a pre-trial hearing is scheduled for that day before military judge Col. Gary Brockington. A spokesman for the 82nd Airborne Division said Pernell’s lawyers requested the continuance. The spokesman also said Brockington denied a request to move the trial to another military base.

DADT: Off topic, but on topic for military justice developments.

AllHeadlineNews.com reports:

The trial of a woman discharged from the Air Force for her sexual orientation begins Monday, less than a week after a federal court declared as unconstitutional the military’s ban against gays serving openly. The case of former Maj. Margaret Witt will begin proceedings before a federal district court in Tacoma. The lawsuit was originally dismissed but a federal appeals court returned it to the district court in 2008, saying the Air Force had to prove the dismissal was crucial to the “good order, morale and discipline” of personnel in Witt’s unit.

The Daily Weekly reports:

Someday, we’re all going to look back at this whole hunting-and-trapping-the-gays-out-of-the-military thing and just laugh. Or cry. Or both. But until that hypothetical enlightened age, there’s Major Margaret Witt, a decorated 19-year veteran of the Air Force whose lawsuit may help bring an end to “Don’t ask, don’t tell.” In 2004, the husband of a woman Witt was dating sent a note to the Air Force outing her as a lesbian. She would eventually be discharged three years later. Witt sued, and now she finds herself in U.S. District Court in Tacoma with a chance to argue for her reinstatement. An argument that will center on whether or not her status as a lesbian “hurt morale and unit cohesion.” A flight nurse at McChord, Witt was literally the Air Force’s poster child, as her face was used on the Nurse Corp’s promotional fliers. And a year before getting the boot, Witt received her second medal for saving the life of a Defense Department employee on a flight from Bahrain.

This New York Times piece reports:

Major Witt’s lawyers say former colleagues will testify that she was an effective leader and that her discharge, not her presence, hurt morale in her Reserves unit, the 446th Aeromedical Evacuation Squadron. Several of the witnesses say they suspected she was a lesbian but did not mind serving alongside her.

An Army captain from Colorado charged with killing two Iraqi civilians has been convicted of lesser charges in Iraq. Military officials say Capt. Carl Bjork was found guilty of reckless endangerment and negligent homicide in a general court-martial on Tuesday. He was reprimanded and will lose a third of his salary for one year.

Army Times reports:

The mother of an Army specialist from Oshkosh who was fatally shot at Fort Hood in Texas says she’s disappointed in the sentence given to the soldier who killed her son. Armando Baca will spend 20 years in a military prison at Fort Leavenworth, Kan., for shooting 30-year-old Ryan Schlack during a party at the base.

Air Force Times reports that: Chief Gurney’s Article 32, UCMJ, hearing is scheduled for 26 May 2010, at Wright-Patt AFB, OH. bnd.com also has a post.

Air Force Times reports:

Two special operations pilots flying across Africa took a gamble that cost them big time. Even though they had six passengers, a crew member and not a clue where to find an emergency landing strip, they decided to risk flying on fumes to stay on schedule. Call them fuel-hardy, refusing twice to fill up with Jet-A gas. The twin-engine DHC-8 crashed in remote scrubland, wounding all nine onboard. Five had broken bones. A few simply suffered bruises. Three had back injuries so serious that they couldn’t walk. As for the $7 million plane, the Air Force wrote it off as a total loss.

And no disciplinary action.

Joseph Allen served in the United States Air Force (Air Force) for more than twenty years, from January 14, 1985, until September 30, 2006, when he voluntarily retired and received an Honorable Discharge. During his service, on February 18, 2004, the Air Force initiated general court-martial proceedings against Allen, alleging that he took indecent liberties with a minor child and contributed to the delinquency of two minor children. The general court-martial trial began more than two years later, on March 21, 2006. Allen was convicted, and his sentence included a reduction in grade from Master Sergeant (E-7) to Senior Airman (E-4), significantly reducing his retirement benefits. Following the conviction, Allen filed a complaint against the Air Force and nineteen individuals in the District Court for the District of North Dakota, claiming that his Sixth Amendment speedy trial rights were violated. The district court[ 2 ] granted the Air Force’s motion for summary judgment. Allen appeals, and for the following reasons, we affirm. Allen also moves to supplement the record, and we deny his motion.

Following his conviction, Allen requested that the court-martial’s findings and sentence be set aside and that the charge and specifications be dismissed because the military judge should have granted Allen’s motion to dismiss for violation of his speedy trial or due process rights. In a memorandum, the Director of the Air Force Judiciary, Colonel Roberta Moro, acting pursuant to Article 69 of the UCMJ, reviewed the record of the court-martial, determined that no relief was warranted and declined to send the case to the Air Force Court of Criminal Appeals because the court-martial’s findings and sentence were supported by law. On September 30, 2006, Allen voluntarily retired from the Air Force and received an Honorable Discharge.

Standout slotback Marcus Curry, whose off-field behavior drew as much attention as his on-field exploits, has been dismissed from the Naval Academy football team. Curry was charged with an unauthorized absence for failing to be in his dormitory room in Bancroft Hall when required. The Capital reported in late January that Curry was allowed to remain at the Naval Academy despite testing positive for drug use and after recommendations he be dismissed.

Thanx CAAFLog.

bnd.com has this report (I posted on this earlier here):

A lesbian, Chaurasiya came out to her unit commander last summer after a chain of events beyond her control.

Although Chaurasiya (pronounced “Chara-seeya”) admitted to being a lesbian, and even possessed a New Hampshire marriage certificate to another woman, a three-star Air Force general in February ruled she should remain in the military anyway.

The general’s reason: Chaurasiya acknowledged her sexual orientation as a way of “avoiding and terminating military service,” according to the memo written by Lt. Gen. Robert Allardice, commander of the 18th Air Force, based at Scott.

The case has taken a different twist:

On Thursday, Chaurasiya found herself the subject of an three-hour interview with officers from the Air Force Office of Special Investigations. The officers asked her about her affiliation with India, the land of her parents’ birth, and her travels around the world.

At the same time 365gay.com reports that a ROTC student who has “come out” must now repay about $80,000.00 in recoupment.

CBS4Denver reports that:

he U.S. Army is conducting an investigation of at least 38 recruiters in its Denver Army Recruiting Battalion. . . . The probe is looking into whether fraudulent documents were used to enlist new soldiers. Those documents could include items such as phony diplomas and other altered records. Five years ago CBS4 News showed Denver area recruiters instructing a high school student how to get a phony diploma and teaching him how to beat a drug test. It led to a national “stand down day” for all recruiters to re-examine ethics.

Here is a link to some interesting letters to the Chattnoogan.com regarding the SEAL cases.

Reversing an earlier decision, the Air Force said Monday it intends to discharge a lesbian Air Force officer who had remained in the military despite openly declaring her homosexuality. An Air Force general earlier this year concluded that Lt. Robin R. Chaurasiya should not be discharged, saying she had declared her sexual orientation for the purpose of avoiding military service. “I am kind of heartbroken,” Chaurasiya said. “I felt my situation was hinting at changes. I really thought I would be able to lead the way for a more equal military.”

On 2 April Chicago Tribune reported.

Lt. Robin R. Chaurasiya … is a lesbian, and in a civil union with another woman. Her commander at Scott Air Force Base in Illinois, Lt. Gen. Robert R. Allardice, could have discharged her under the Pentagon’s “don’t ask, don’t tell” policy. Instead, he determined in February that she should remain in the Air Force because she acknowledged her sexual orientation for the purpose of “avoiding and terminating military service.”

Chaurasiya says that is not true. But the general’s reasoning has the flavor of a Catch-22: If you admit to being homosexual you can be discharged from the military, but if you admit it for the purposes of being discharged you won’t be.

Queerty has part of the correspondence.

When Airmen ignore inspecting their medicine cabinets they risk possible damage to their careers and, more importantly, can jeopardize their health. This becomes a problem later if Airmen take prescribed medications after the prescription has expired. Airmen who test positive for expired or borrowed prescriptions are subject to legal proceedings under the UCMJ, and incur punishments similar to those who test positive for illegal narcotics. “Wrongful use of prescription drugs is a violation of Article 112a of the Uniform Code of Military Justice,” said Capt. Heather Rowlison, 28th Bomb Wing assistant staff judge advocate. “Violations of this article can be punished at court martial, with a maximum punishment of dishonorable discharge and a confinement of up to 15 years.” Giving medication to other Airmen to help with temporary pain or due to self-diagnosis, is also another pitfall for Airmen.

I find this interesting as always. Several years ago I had this situation in a case. The prosecution called the base pharmacist as a witness. The purpose was to establish various facts and to have the pharmacist talk about the prescriptions and issues and expiration of prescriptions. What the prosecution didn’t know, they’d not talked to their witness – actually, let me rephrase that, they did talk to the witness, but only about what they needed to prove the elements as they thought of them, they made the mistake many prosecutors make of only thinking about the prosecution case, not how the defense might try to defend – well anyway, there were several points I was able to bring out during cross-examination.

First, the prescription was given to be taken, “as needed.” PRN or as needed in the medical terminology is commonly used to mean “as needed” or “as the situation arises.” It is generally used as the acronym PRN to refer to dosage of prescribed medication that is not scheduled; instead administration is left to the caregiver or the patient’s prerogative.

Second, the pharmacist testified to several other things relevant to findings.

a. That he himself had on occasion used old pain medications from his medicine cabinet when he felt a pain from an old injury. Oooops – this was what the client was being prosecuted for doing. Remember, as a pharmacist he wasn’t the provider who prescribed the medication to himself, so he had no implied authority to self-medicate or prescribe. b. That the prescription may be for 30 day supply, but that doesn’t mean the allowed usage has to occur only within that 30 days, especially if it’s a PRN prescription (see above).

Client was acquitted on that charge. Unfortunately he had a few other charges so it wasn’t a complete loss to the prosecution or a complete win for me. But it does illustrate the need to actually dig a little deeper into the allegations and what the witness can testify to.