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.

Commander, Naval Network Warfare Command, Rear Adm. Edward H. Deets III, relieved Cmdr. Mary Ann L. Giese, commanding officer of U.S. Naval Computer and Telecommunications Station (NCTS) Bahrain Aug. 21 due to loss of confidence in her ability to command. The decision to relieve Giese comes after a preliminary investigation into allegations that she had been involved in inappropriate relationships with other Navy personnel.

Navy Times reports that:

Giese is the 13th skipper fired in 2010 and the third since Aug. 12. Fifteen commanding officers were fired in 2009, according to Navy and Navy Times records. Since 2000, 143 Navy skippers have been relieved for cause — or, from 2000 through last year, an average of 13.2 firings per year. The highest annual total over that time span, 26 firings, was recorded in 2003.

The Times Leader has several entries for this day 64 years ago, here is just one.

The court martial of Marine Sgt. Matthew McKeon was in the news. Sgt. McKeon led 74 men in his platoon on what was called an extremely unorthodox disciplinary night march into swampy Ribbon Creek on Parris Island. As a result, six of the recruits drowned. Sgt McKeon’s sentence was a $270 fine, nine months of confinement at hard labor, rank reduced to private and a bad conduct discharge.

Wikipedia has an entry for the Ribbon Creek incident. And here is a 23 April 1956 Time article.

According to AOLNews:

Wikileaks founder Julian Assange told a Swedish newspaper today that he believes the Pentagon could be behind a rape allegation that was filed against him on Friday, and was quickly withdrawn by Swedish prosecutors.

This follows the strange story from the other day. The Wikileaks/Manning case that is sure to have many more bizarre twists and turns as it proceeds. Michael Moore is now on board supporting Manning. All the while Manning remains confined at Marine Corps Brig Quantico.

On the rapper, Army Times reports:

Army spokesman Lt. Col. Eric Bloom said Saturday that top brass decided to discharge Hall instead of taking him to trial in part because he admitted his guilt.

Army Times noted this context for the case:

Army lawyers concede that Hall never took physical action against any troops. His threat came the month after Maj. Nidal Hassan allegedly killed 13 people in a shooting spree at Ft. Hood, Texas — a period when the Pentagon was taking extra precautions about potentially violent soldiers.

Stars & Stripes reports:

A soldier charged with making threats to other soldiers in a rap song he wrote to protest his stop-loss will be discharged from the military. Spc. Marc A. Hall, of the 1st Heavy Brigade, 3rd Infantry Division, will receive an other-than-honorable discharge from the Army, reduction to E-1 and will also lose a “substantial number” of military and veteran benefits, according to a statement issued Saturday by U.S. Division-Center in Baghdad. Hall has been in confinement for the past four months, most recently before standing trial in Kuwait, the release states. As part of his discharge deal, which came after charges were referred on March 30, Hall acknowledged he was guilty of at least one of the five offenses he faced, according to the release. The convening authority for the case, Maj. Gen. Terry A. Wolff, accepted Hall’s plea after considering the amount of time he had already spent in jail, his acknowledgement of guilt, prior service and the benefits Hall will lose, the release states.