UNITED STATES, Appellee
V.
Sean M. TARDIF, Food Service Specialist Third Class
U.S. Coast Guard, Appellant
No. 01-0520
Crim. App. No. 1141
United States Court of Appeals for the Armed Forces
Argued November 27, 2001
Decided August 30, 2002
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and SULLIVAN,
S.J., each filed a dissenting opinion.
Counsel
For Appellant: Commander Jeffrey C. Good (argued and on brief).
For Appellee: Lieutenent Daniel J. Goettle (argued and on
brief); Commander Chris P. Reilly.
Amicus Curiae: Colonel Steven T. Salata, Lieutenant Colonel
Denise R. Lind, Major Margaret B. Baines, and Captain Karen
J. Borgerding (on brief) – For the U.S. Army Government
Appellate Division.
Military Judge: Robert Bruce
This opinion is subject to editorial correction before final publication.
United States v. Tardif, No. 01-0520/CG
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of a 12-day
unauthorized absence and assault on a child under the age of
sixteen years (two specifications), in violation of Articles 86
and 128, Uniform Code of Military Justice (UCMJ), 10 USC §§ 886
and 928, respectively. The adjudged sentence provides for a
dishonorable discharge, confinement for three years, total
forfeitures, and reduction to the lowest enlisted grade. The
convening authority reduced the confinement to 24 months but
otherwise approved the sentence.
The Court of Criminal Appeals set aside the conviction of
unauthorized absence and reassessed and affirmed the sentence.
55 MJ 666 (2001). On reconsideration, the court below granted
appellant 12 days of confinement credit under United States v.
Allen, 17 MJ 126 (CMA 1984). 54 MJ 954 and 55 MJ 670 (2001).
This Court granted review of the following issue:
WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN
CONCLUDING THAT APPELLANT HAD NOT BEEN PREJUDICED BY
EXCESSIVE POST-TRIAL DELAY WHERE THE COURT BELOW CONCLUDED
THAT THE DELAY WAS BOTH “UNEXPLAINED AND UNREASONABLE” AND
“CASTS A SHADOW OF UNFAIRNESS OVER OUR MILITARY JUSTICE
SYSTEM.”
For the reasons set out below, we hold that a Court of
Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC
§ 866(c), to grant appropriate relief for unreasonable and
unexplained post-trial delays. We further hold that this
authority under Article 66(c) is distinct from the court’s
authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn
a finding or sentence “on the ground of an error of law[.]”
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Finally, we hold that the court’s authority to grant relief under
Article 66(c) does not require a predicate holding under Article
59(a) that “the error materially prejudices the substantial
rights of the accused.” Because the court below considered
itself constrained from granting relief by Article 59(a) and did
not consider the impact of the post-trial delays in its review
under Article 66(c), we remand the case for further
consideration.
Appellate History
The chronology of post-trial events in appellant’s case is
as follows:
DATE ACTION DAYS ELAPSED
October 29, 1999 Appellant sentenced 0
October 29, 1999 Confinement deferred 0
November 5, 1999 Deferment ends 7 days
December 21, 1999 Military Judge 53 days
receives record of
trial
February 7, 2000 Record authenticated 101 days
March 23, 2000 Record served on 145 Days
Defense Counsel (DC)
April 10, 2000 Recommendation of 163 days
Staff Judge Advocate
(SJA) prepared1
May 15, 2000 DC responds to SJA 198 days
recommendation
June 9, 2000 Convening 223 days
Authority’s action
Oct 2, 2000 Record forwarded to 338 days
Headquarters, U.S.
Coast Guard
November 1, 2000 Record received at 368 days
Coast Guard
Headquarters
November 17, 2000 Record referred to 384 days
Coast Guard Court of
Criminal Appeals
1
The record does not reflect the date on which the SJA’s recommendation was
served on defense counsel.
3
United States v. Tardif, No. 01-0520/CG
The court below focused on the 115 days that elapsed after
the convening authority’s action and before the record was
forwarded to Coast Guard Headquarters. Concluding that the delay
was “unexplained and unreasonable,” and that it “casts a shadow
of unfairness over our military justice system,” the court
nevertheless held that it was without authority to grant relief.
Citing this Court’s decisions in United States v. Hudson, 46 MJ
226 (1997), United States v. Jenkins, 38 MJ 287 (CMA 1993), and
United States v. Banks, 7 MJ 92 (CMA 1979), the court below
concluded that “an appellant must show that the delay, no matter
how extensive or unreasonable, prejudiced his substantial
rights.” 55 MJ at 668. Chief Judge Baum dissented from the
decision to not grant relief for the excessive delay in
forwarding the case to the Court of Criminal Appeals. In Chief
Judge Baum’s view, no more than 21 months of confinement should
have been approved. Id. at 669.
Before this Court, appellant argued that the court below
applied the wrong standard of review by focusing on Article 59(a)
instead of Article 66(c). Appellant requested that his case be
remanded to the court below for consideration under Article
66(c), with instructions that unexplained and unreasonable post-
trial delay is an appropriate factor for that court to consider
in determining what sentence “should be approved,” regardless of
whether appellant has established legal prejudice.
The Government asserted that appellant was not harmed by the
delay, and that it would be a windfall for appellant if he were
granted sentence relief without showing that he has been harmed.
The Government conceded, however, that if an appellant has
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United States v. Tardif, No. 01-0520/CG
suffered “harm” falling short of “prejudice” within the meaning
of Article 59(a), a Court of Criminal Appeals may grant
appropriate relief through its review of sentence appropriateness
under Article 66(c).
The U.S. Army Government Appellate Division, as amicus
curiae, urged this Court to hold that a Court of Criminal Appeals
must be convinced that there was material prejudice to a
substantial right under Article 59(a) before it grants relief for
unreasonable post-trial delay. It further urged this Court to
hold that, if a Court of Criminal Appeals concludes there has
been material prejudice to an appellant’s substantial rights, it
may fashion appropriate relief under Article 66(c), without
setting aside the findings and sentence.
In contrast to the Coast Guard court’s decision in this
case, the Army Court of Criminal Appeals has held that its “broad
power to moot claims of prejudice” under Article 66(c) empowers
it to grant relief for excessive delays in the absence of a
showing of “actual prejudice.” United States v. Collazo, 53 MJ
721, 727 (Army Ct.Crim.App. 2000), quoting United States v.
Wheelus, 49 MJ 283, 288 (1998). The Army court noted:
[F]undamental fairness dictates that the government
proceed with due diligence to execute a soldier’s
regulatory and statutory post-trial processing rights
and to secure the convening authority’s action as
expeditiously as possible, given the totality of the
circumstances in that soldier’s case.
The Army court held, “That did not happen in [this] case.” Id.
In so holding, the Army court in Collazo noted that the
appellant had “not demonstrated actual prejudice under Banks.”
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However, the Army court emphasized the importance of other
factors, such as
[t]he infringement of appellant’s statutory rights
under Articles 38 and 54, UCMJ, [10 USC §§ 838 and
854,] the denial of the opportunity to review the
record prior to authentication as required by RCM 1103,
[Manual for Courts-Martial, United States (2000 ed.),]
the failure to provide a complete copy of the record of
trial (to include the allied papers) for use in
preparation of RCM 1105 matters, and the unacceptable
10-month delay in preparing the record of trial[.]
These circumstances, the court concluded, “warrant relief” in the
course of the court’s exercise of its responsibility under
Article 66(c) to affirm only “such part or amount of the
sentence, as it . . . determines, on the basis of the entire
record, should be approved.” Id., quoting Article 66(c).
Discussion
1. Legal Context
A brief legal history is necessary to place the granted
issue in context. This Court has long recognized that an accused
has a right to timely review of the findings and sentence. See
United States v. Tucker, 9 USCMA 587, 589, 26 CMR 367, 369 (1958)
(“Unexplained delays . . . [in appellate processes] should not be
tolerated by the services, and they will not be countenanced by
this Court.”).
In United States v. Burton, 21 USCMA 112, 44 CMR 166 (1971),
the appellant asked this Court to set aside his conviction and
sentence and dismiss the charges, on the ground that he had been
denied his right to a speedy trial, in violation of Article 10,
UCMJ, 10 USC § 810. This Court established a presumption of an
Article 10 violation whenever an accused is held in pretrial
confinement for more than three months. Under the Burton rule,
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United States v. Tardif, No. 01-0520/CG
there was a “heavy burden on the Government to show diligence,
and in the absence of such a showing the charges [would] be
dismissed.” Id. at 118, 44 CMR at 172.
In Dunlap v. Convening Authority, 23 USCMA 135, 48 CMR 751
(1974), this Court considered a petition for extraordinary relief
filed by a petitioner who remained in confinement at the United
States Disciplinary Barracks for 11 months after his conviction
was set aside, awaiting a convening authority’s decision whether
to order a rehearing or dismiss the charges. This Court
concluded that the same considerations underlying the Burton rule
for pretrial delays should be applied to post-trial delays.
Thus, this Court held that “a presumption of a denial of speedy
disposition of the case will arise when the accused is
continuously under restraint after trial and the convening
authority does not promulgate his formal and final action within
90 days of the date of such restraint after completion of trial.”
Id. at 138, 48 CMR at 174. Like the Burton rule, the Dunlap rule
placed a “heavy burden on the Government to show diligence, and
in the absence of such a showing the charges [would] be
dismissed.” Id.
In Banks, supra, the Judge Advocate General of the Army
certified an issue challenging the correctness of the lower
court’s decision to set aside a conviction and sentence for
violation of the Dunlap rule by one day. This Court upheld the
lower court’s decision but announced a prospective abandonment of
the Dunlap rule and a return to the rule requiring a showing of
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United States v. Tardif, No. 01-0520/CG
prejudice. 7 MJ at 93-94.2 Although Banks abrogated the
draconian remedy imposed by Dunlap, this Court has not wavered in
its recognition of the right to timely post-trial review. See
United States v. Williams, 55 MJ 302, 305 (2001) (“Appellant has
a right to a speedy post-trial review of his case.”).
In Hudson, 46 MJ at 227, Jenkins, 38 MJ at 288, and
Williams, supra, this Court again considered requests to dismiss
the charges for delays in post-trial processing. In all these
cases, this Court declined to dismiss the charges, either citing
or relying on Article 59(a).
In Banks, Hudson, Jenkins, and Williams, this Court was
asked to exercise its own authority under Article 67, UCMJ, 10
USC § 867, and to dismiss the charges for unreasonable and
unexplained delays in post-trial processing. None of these
decisions involved the authority of the Courts of Criminal
Appeals and their predecessors to grant relief under Article
66(c), and none of these decisions involved the question whether
the Courts of Criminal Appeals and their predecessors had
authority to grant relief short of dismissal of the charges. The
pleadings in this case present two issues:
(1) Whether a Court of Criminal Appeals has authority under
Article 66(c) to grant relief for excessive post-trial
delay, whether or not the delay has “materially prejudiced
[the appellant’s] substantial rights”; and
(2) Whether a Court of Criminal Appeals has authority to
grant relief short of dismissal of the charges if it
concludes that there has been excessive post-trial delay.
2
In United States v. Kossman, 38 MJ 258, 262 (CMA 1993), this Court also
abrogated the Burton rule and returned to a “reasonable diligence” test.
8
United States v. Tardif, No. 01-0520/CG
These issues involve interpretation of Articles 59(a) and 66(c),
and thus they present issues of law, which we review de novo.
2. Authority of Courts of Criminal Appeals
Unlike our Court’s limited authority to review sentences
under Article 67, a Court of Criminal Appeals has broad authority
under Article 66(c) to review and modify sentences. Article
66(c) provides in pertinent part as follows:
[The Court of Criminal Appeals] may affirm only such
findings of guilty and the sentence or such part or
amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record,
should be approved.
The legislative history of Article 66 reflects congressional
intent to vest broad power in the Courts of Criminal Appeals.
The legislative history also reflects a congressional distinction
between review of the lawfulness of a sentence and its
appropriateness. See S. Rep. No. 98-486, at 28 (1949) (“The
Board may set aside, on the basis of the record, any part of a
sentence, either because it is illegal or because it is
inappropriate.”). Professor Morgan, chair of the drafting
committee for the UCMJ, testified as follows about the power of
the Boards of Review, the predecessors of the Courts of Criminal
Appeals:
[T]he board of review, now, has very extensive powers.
It may review law, facts, and practically, sentences;
because the provisions stipulate that the board of
review shall affirm only so much of the sentence as it
finds to be justified by the whole record. It gives
the board of review . . . the power to review facts,
law and sentence . . . .
Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the Senate
Comm. on Armed Services, 81st Cong., at 42 (1949).
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United States v. Tardif, No. 01-0520/CG
In Jackson v. Taylor, 353 U.S. 569, 576-77 (1957), the
Supreme Court reviewed the legislative history of Article 66, and
it concluded that Congress intended the Boards of Review to
affirm only so much of the sentence as they found to be
“justified by the whole record,” and to set aside all or part of
a sentence, “either because it is illegal or because it is
inappropriate.” Our Court likewise has concluded that the
predecessors of the Courts of Criminal Appeals had the power and
responsibility to, “in the interests of justice, substantially
lessen the rigor of a legal sentence.” United States v. Lanford,
6 USCMA 371, 378, 20 CMR 87, 94 (1955).
Our Court has consistently recognized the broad power of the
Courts of Criminal Appeals to protect an accused. See United
States v. Parker, 36 MJ 269, 271 (CMA 1993). We have
consistently recognized that the charter of Courts of Criminal
Appeals on sentence review is to “do justice.” United States v.
Claxton, 32 MJ 159, 162 (CMA 1991); United States v. Healy, 26 MJ
394, 395-96 (CMA 1988). Finally, we have consistently recognized
the “broad power” of a Court of Criminal Appeals “to moot claims
of prejudice by ‘affirm[ing] only such findings of guilty and the
sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the
entire record, should be approved.” Wheelus, 49 MJ at 288,
quoting Art. 66(c); see also United States v. Higbie, 12 USCMA
298, 30 CMR 298 (1961) (recognizing power of Board of Review to
reduce sentence in order to moot issue whether convening
authority considered a dismissed charge and specification in his
review of the adjudged sentence).
10
United States v. Tardif, No. 01-0520/CG
However, the power of the Courts of Criminal Appeals is not
without limits. Article 59(a) provides: “A finding or sentence
of court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.” Article 59(a) was intended
by Congress to preclude reversals for minor technical errors.
See United States v. Powell, 49 MJ 460, 462 (1998). In
accordance with Article 67, this Court reviews the sentencing
decisions of the Courts of Criminal Appeals for “obvious
miscarriages of justice or abuses of discretion.” See United
States v. Jones, 39 MJ 315, 317 (CMA 1994).
Based on the legislative and judicial history of Articles
59(a) and 66(c), we conclude that the power and duty of a Court
of Criminal Appeals to review sentence appropriateness under
Article 66(c) is separate and distinct from its power and duty to
review a sentence for legality under Article 59(a). Considered
together, Articles 59(a) and 66(c) “bracket” the authority of a
Court of Criminal Appeals. Article 59(a) constrains the
authority to reverse “on the ground of an error of law.” Article
66(c) is a broader, three-pronged constraint on the court’s
authority to affirm. Before it may affirm, the court must be
satisfied that the findings and sentence are (1) “correct in
law,” and (2) “correct in fact.” Even if these first two prongs
are satisfied, the court may affirm only so much of the findings
and sentence as it “determines, on the basis of the entire
record, should be approved.” See Powell, supra at 464-65. The
first prong pertains to errors of law and, as such, it also
implicates Article 59(a). The second and third prongs do not
11
United States v. Tardif, No. 01-0520/CG
involve errors of law and, thus, do not implicate Article 59(a).
Based on this statutory analysis, we agree with the Army court’s
conclusion in Collazo that a Court of Criminal Appeals has
authority under Article 66(c) to grant relief for excessive post-
trial delay without a showing of “actual prejudice” within the
meaning of Article 59(a), if it deems relief appropriate under
the circumstances. 53 MJ at 727.
Thus, we hold that, in addition to its determination that no
legal error occurred within the meaning of Article 59(a), the
court below was required to determine what findings and sentence
“should be approved,” based on all the facts and circumstances
reflected in the record, including the unexplained and
unreasonable post-trial delay. Accordingly, we conclude that a
remand is necessary so that the court below can exercise its
broad authority under Article 66(c) to determine whether relief
is warranted and, if so, what relief should be granted.
3. Remedies for Excessive Post-Trial Delay
The argument of amicus curiae raises the additional issue
whether a Court of Criminal Appeals has authority to grant relief
short of dismissal of the charges if it finds excessive post-
trial delay. This argument reflects the longstanding concern of
our Court and the Courts of Criminal Appeals about the draconian
remedy required by Dunlap and its progeny for excessive post-
trial delay. See Hudson, 46 MJ at 227 (“[W]e are loath to
declare that valid trial proceedings are invalid solely because
of delays in the criminal process after the trial.”); United
States v. Clevidence, 14 MJ 17, 21 (CMA 1982) (Cook, J.,
dissenting) (dismissing charges is “burning the barn to kill the
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United States v. Tardif, No. 01-0520/CG
rats”); Banks, 7 MJ at 93 (“The certified question expresses the
frustration of the services over the inflexibility of the Dunlap
rule.”); Dunlap, 23 USCMA at 141, 48 CMR at 757 (Duncan, C.J.,
dissenting) (“What the Court does today is provide a means where
a person found guilty beyond a reasonable doubt in an error-free
hearing may escape any sanction.”); see also Department of the
Army Pamphlet 27-50-336, The Army Lawyer, Criminal Law Note:
United States v. Collazo: The Army Court of Criminal Appeals Puts
Steel on the Target of Post-Trial Delay, at 37-38 (November 2000)
(Army Court of Criminal Appeals “left with the options of finding
prejudice and letting a rapist go free, or finding no prejudice
and ratifying the sloppy administration of justice.”).
Before this Court decided Dunlap, denial of the right to
speedy trial resulted in dismissal of the charges only if
reversible trial errors occurred and it was impossible to cure
those errors at a rehearing because of the excessive post-trial
delay. See United States v. Timmons, 22 USCMA 226, 227, 46 CMR
226, 227 (1973), and cases cited therein. In Timmons, this Court
noted that the court below had purged the effect of a trial error
by modifying the findings, making dismissal of the charges
unwarranted. In United States v. Gray, 22 USCMA 443, 445, 47 CMR
484, 486 (1973), this Court repeated this principle:
[B]efore ordering a dismissal of the charges because of
post-trial delay there must be some error in the
proceedings which requires that a rehearing be held and
that because of the delay appellant would be either
prejudiced in the presentation of his case at a
rehearing or that no useful purpose would otherwise be
served by continuing the proceedings.
Although Dunlap is regarded as a post-trial delay case, the
delay in that case actually involved the decision whether to
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United States v. Tardif, No. 01-0520/CG
order a rehearing. See 23 USCMA at 136, 48 CMR at 752. Assuming
without deciding that Article 10 applies only to proceedings
through trial, this Court stated, “[T]he failure of the Uniform
Code or the Manual for Courts-Martial to condemn directly
unreasonable delay by the convening authority in acting on the
record of trial does not mean that relief against such delay is
unobtainable.” This Court then decided that it was “appropriate”
that the presumption of prejudice adopted for pretrial delays in
Burton be applied to post-trial delays, along with the sanction
of dismissing the charges whenever the presumption of prejudice
was not overcome. Id. at 138, 48 CMR at 754.
In United States v. Becker, 53 MJ 229, 232 (2000), this
Court provided the following guidance concerning remedies for
“speedy trial” violations in the context of sentence rehearings:
“[T]he remedy should be tailored to the harm suffered, such as an
appropriate sentence credit or, in a case where the delay has
interfered with the defense’s ability to receive a fair hearing,
a sentence to no punishment at all.”
We conclude that the Dunlap “all-or-nothing” remedy for
post-trial delays was laid to rest in Banks. We further conclude
that appellate courts are not limited to either tolerating the
intolerable or giving an appellant a windfall. The Courts of
Criminal Appeals have authority under Article 66(c) to apply the
Timmons approach, recently repeated in Becker, to post-trial
delays, and to tailor an appropriate remedy, if any is warranted,
to the circumstances of the case.
Finally, we note that counsel at the trial level are
particularly well-situated to protect the interests of their
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United States v. Tardif, No. 01-0520/CG
clients by addressing post-trial delay issues before action by
the convening authority. Trial counsel can ensure that the
record contains an explanation for what otherwise might appear to
be an unreasonable delay. Defense counsel can protect the
interests of the accused through complaints to the military judge
before authentication or to the convening authority after
authentication and before action. After the convening
authority’s action, extraordinary writs may be appropriate in
some circumstances. Appellate relief under Article 66(c) should
be viewed as the last recourse to vindicate, where appropriate,
an appellant’s right to timely post-trial processing and
appellate review.
Decision
The decision of the United States Coast Guard Court of
Criminal Appeals is set aside. The record of trial is returned
to the General Counsel of the Department of Transportation for
remand to the Court of Criminal Appeals for reconsideration in
light of this opinion. Thereafter, Article 67 will apply.
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CRAWFORD, Chief Judge (dissenting):
The majority interprets Articles 66(c) and 59(a) in a
manner that is contrary to the principles of statutory
construction and legislative intent, as well as inconsistent
with 50 years of established practice and case law. In so
doing, the majority offers an incomplete recitation of the
legislative history of Articles 66(c) and 59(a) and ignores the
practical effects of its decision. The majority’s misreading of
Article 59 should not be further exacerbated. Unless there has
been a substantial violation of an appellant’s rights, the
Courts of Criminal Appeals may not use their supervisory
authority to grant further relief to the appellant. United
States v. Hasting, 461 U.S. 499, 505 (1983). Instead, this
Court should encourage corrective action by those responsible
for post-trial delays. Id. at 506 n.5. Because the majority is
engaging in broad judicial rulemaking1 by amending the Code to
expand Article 66(c) and contract Article 59(a), and thereby
essentially creating a power of equity in the court below, I
must respectfully dissent.
The objectives of the majority and the Army Court of
Criminal Appeals in United States v. Collazo, 53 MJ 721
(Army Ct. Crim. App. 2000), are well intentioned but lack a
1
See United v. Key, No. 01-0646, ___ MJ ___ n.* (2002)(Crawford, C.J.,
concurring in the result).
United States v. Tardif, No. 01-0520/CG
doctrinal basis. I wholeheartedly endorse the goal of
preventing unexplained or unreasonable post-trial delays, but
believe there is a better means of achieving this end without
violating the doctrine of separation of powers and principles
established for judicial bodies.
The starting point for interpreting a statute is, of
course, the plain meaning of that statute. In addition, there
are a number of factors that provide a framework for engaging in
statutory interpretation. These include the contemporaneous
history of the statute; the contemporaneous interpretation of
the statute; and subsequent legislative action or inaction
regarding the statute. These factors provide a background of
the existing customs, practices, and rights and obligations
against which to read the statute. Applying these principles of
statutory interpretation to Articles 66(c) and 59(a) yields a
different result from that reached by the majority.
Article 66(c) provides as follows:
In a case referred to it, the Court of Criminal
Appeals may act only with respect to the findings
and sentence as approved by the convening
authority. It may affirm only such findings of
guilty and the sentence or such part or amount of
the sentence, as it finds correct in law and fact
and determines, on the basis of the entire record,
should be approved. In considering the record, it
may weigh the evidence, judge the credibility of
witnesses, and determine controverted questions of
fact, recognizing that the trial court saw and
heard the witnesses.
2
United States v. Tardif, No. 01-0520/CG
Additionally, Article 59(a) provides:
A finding or sentence of court-martial may not be
held incorrect on the ground of an error of law
unless the error materially prejudices the
substantial rights of the accused.
Contemporaneous History. Article 66(c) provides that the
Court of Criminal Appeals “may affirm only ... the sentence or
such part or amount of the sentence, as it finds correct in law
and fact and determines, on the basis of the entire record,
should be approved.”
By establishing the intermediate appellate courts, Congress
intended to eliminate command influence, such as a commander
sending an acquittal back to a court-martial for
reconsideration. Hearings on H.R. 2498 Before a Subcomm. of the
House Comm. on Armed Services, 81st Cong., at 608 (1949)(the
“Hearings”). The courts of review could examine not only
questions of law, but questions of fact, to preclude command
influence. Id. Additionally, Article 66 was intended to grant
the Courts of Criminal Appeals discretionary power to modify
sentences. These courts would ensure that there was a uniform
Code because they would examine courts-martial sentences from
throughout the world. The Hearings emphasized, “It is
contemplated that this power [under Articles 66 and 59] will be
exercised to establish uniformity of sentences throughout the
armed forces.” Id. at 1187.
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This is reinforced by Professor Morgan’s commentary to
Article 66, which provides:
The Board of Review shall affirm a finding of
guilty of an offense or a lesser included offense
(see Article 59) if it determines that the
finding conforms to the weight of the evidence
and that there has been no error of law which
materially prejudices the substantial rights of
the accused. See Article 59, Commentary. The
Board may set aside, on the basis of the record,
any part of a sentence, either because it is
illegal or because it is inappropriate. It is
contemplated that this power will be exercised to
establish uniformity of sentences throughout the
armed forces. See Article 67(g).
Uniform Code of Military Justice: Text, References and
Commentary based on the Report of the Committee on a Uniform
Code of Military Justice to the Secretary of Defense, at 94
(1950).
The plain meaning of Article 66 is that the Court of
Criminal Appeals may “affirm only ... findings and sentences”
based on the “entire record.” We have interpreted this statute
to allow Courts of Criminal Appeals, based on the entire record
of trial, to modify or dismiss charges based on a lack of
factual sufficiency, as well as reassess sentences found to be
inappropriate. But we have not allowed these courts to go
outside the record, for example, by considering two nonjudicial
punishments that were inadmissible at trial. See United States
v. Redhouse, 53 MJ 246 (2000)(summary disposition). Nor have we
allowed the Courts of Criminal Appeals to grant suspension of
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United States v. Tardif, No. 01-0520/CG
the punishment. See, e.g., United States v. Darville, 5 MJ 1
(CMA 1978).
Additionally, the plain meaning of the statute in the
context of its enactment in 1950 does not support the majority’s
position. When Congress wanted to grant discretionary power
unrelated to Article 59, it knew how to do so. See Art.
60(c)(2), UCMJ, 10 USC § 860(c)(2)(in acting on the findings or
sentence, “convening authority ..., in his [or her] sole
discretion, may approve, disapprove, commute, or suspend the
sentence in whole or in part”); see also Art. 60(c)(3)(A)
(convening authority may act “in his [or her] sole discretion”
in dismissing the charges or specifications).
Authority was not granted to the Courts of Criminal Appeals
to grant windfalls unrelated to Article 59 or act in their “sole
discretion.” While the authority of the courts below has been
commented on by referring to them as the “proverbial 800-pound
gorilla,” they may not act on their own whim. United States v.
Parker, 36 MJ 269, 273 (CMA 1993)(Wiss, J., concurring). We
have not granted these courts power under Article 66(c) to
resolve post-trial claims of ineffective assistance of counsel
by making findings of fact based on conflicting affidavits from
the parties. See, e.g., United States v. Ginn, 47 MJ 236
(1997). Based upon the plain language of the statute and the
legislative history, it is improbable that if Congress was
5
United States v. Tardif, No. 01-0520/CG
asked, it would grant the authority to the Courts of Criminal
Appeals to reduce sentences because of post-trial delay, even
though an appellant was not prejudiced.
Contemporaneous Interpretation. In interpreting Articles
66(c) and 59(a), we should examine their construction for the
last 50 years by this Court and intermediate service appellate
courts. None has reached the conclusion reached by the Army
court in Collazo. Additionally, there has been no change to the
statutes that might precipitate a statutory reinterpretation.
The fact that this remedy has not been previously proposed is
good evidence that such was not the intent of Congress.
Legislative Action or Inaction. If Congress wanted to
establish the remedy which the majority sanctions, it would have
done so at the time of the UCMJ’s enactment, or at any
subsequent time that it became dissatisfied with decisions from
the courts concerning post-trial delays. Numerous changes to
the UCMJ have been enacted by Congress over the last 50 years,
many in response to various judicial decisions. No changes have
been forthcoming regarding the impact of post-trial delays. The
majority’s interpretation simply does not relate to the
statutory objectives sought by Congress.
Practical Effects. There are practical reasons for not
giving this authority to the lower courts. Contrary to the
majority’s assertion, final authority will not rest with the
6
United States v. Tardif, No. 01-0520/CG
Courts of Criminal Appeals. Final review by this Court will be
required to determine whether the lower courts abused their
discretion. Neither the courts below nor this Court should be
placed in the position of determining what constitutes a request
for a delay, what circumstances justify delay, what constitutes
extraordinary circumstances, and so forth. We do not have the
flexibility or ability to gather facts that the President and
his advisors have in exercising their rulemaking authority.
Article 36, UCMJ, 10 USC § 836, is a clear grant of authority to
the President to formulate these procedural rules. We should
not be flirting with amending a statute or the Manual. That
role should be left for Congress and the Executive Branch.
We would be shortsighted in not allowing the President and
the services to exercise their rulemaking authority within
established processes. I agree with Senior Judge Sullivan that
neither this Court nor the courts below ought to exercise
supervisory authority when the error is harmless. Rulemaking by
the Executive Branch or Congress allows for flexibility and
advance planning and avoids the distortion that takes place
through judicial rulemaking. Once the rules are enacted, they
will be subject to judicial review. We will ensure that
servicemembers are not prejudiced by post-trial delays.
Twice previously we have sought to interject ourselves into
issues of delay through injudicious rulemaking. See United
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United States v. Tardif, No. 01-0520/CG
States v. Burton, 21 USCMA 112, 44 CMR 166 (1971); Dunlap v.
Convening Authority, 23 USCMA 135, 48 CMR 751 (1974). As to
both Burton and Dunlap, we recognized the error and overruled
our prior cases. See United States v. Kossman, 38 MJ 258 (CMA
1993); United States v. Banks, 7 MJ 92 (CMA 1979).2 These later
decisions recognize that rules regarding delays should be made
by the Executive Branch or Congress, not by this Court or the
intermediate appellate courts.
The failure to take action in this case will not frustrate
the legislative purpose behind Article 66. In fact, leaving
action to the Congress or the President will ensure that the
majority achieves its objective. This allows rights and
obligations to be protected through the rulemaking process
rather than through judicial efforts to amend the Code.
Certainly there should be no unreasonable and unexplained
delays. But these rules will be more appropriately adopted by
the Legislative or Executive Branch, which are in the best
position to decide when and how to chastise staff judge
advocates and others in the Executive Branch. Judges should be
required immediately to notify the service Clerk of Court or
some central authority when a sentence that includes a punitive
discharge and one year or more confinement has been imposed.
2
See also United States v. Williams, 55 MJ 302 (2001)(no relief granted
because there was no showing of prejudice since there was no representation
to entitlement of pay beyond expiration of term of service).
8
United States v. Tardif, No. 01-0520/CG
See United States v. Henry, 40 MJ 722, 725 (NMCMR 1994). There
can then be an automatic triggering mechanism at 120 days or
some other point in time in order to determine whether the
convening authority has taken action. The fitness evaluation
standards need to be changed: when there are substantial
delays, an evaluation of the responsible person or persons
should reflect such performance.
If we look to the Executive and Legislative Branches to
take action, we will ensure continuity and relative stability in
handling delays in post-trial actions. The difficulties
associated with court-crafted rules can be seen in the hundreds
of published cases and more than a thousand unpublished cases
that were decided subsequent to Burton.
For all of the foregoing reasons, I would affirm the court
below.
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United States v. Tardif, No. 01-0520/CG
SULLIVAN, Senior Judge (dissenting):
I see no reason to reverse and remand this case. I would
affirm. There was no prejudice to appellant from the post-trial
delay in this case, and no appellate relief is otherwise required
by law. See Article 59(a), UCMJ. The majority today creates a
new equity-type supervisory power for the Courts of Criminal
Appeals. This is judicial activism, and I dissent.
This Court granted review on the following question of law:
WHETHER THE COAST GUARD COURT OF CRIMINAL
APPEALS ERRED IN CONCLUDING THAT APPELLANT
HAD NOT BEEN PREJUDICED BY EXCESSIVE POST
TRIAL DELAY WHERE THE COURT BELOW
CONCLUDED THAT THE DELAY WAS BOTH
“UNEXPLAINED AND UNREASONABLE” AND “CASTS
A SHADOW OF UNFAIRNESS OVER OUR MILITARY
JUSTICE SYSTEM.”
We review a Court of Criminal Appeals decision on prejudice
resulting from post-trial delay on a de novo basis. See United
States v. Banks, 7 MJ 92 (CMA 1979). It is key to this case that
both the Government and appellant concede that appellant has not
suffered material prejudice from the post-trial delay in this
case so as to warrant reversal of his conviction. See United
States v. Hudson, 46 MJ 226 (1997); United States v. Jenkins, 38
MJ 287 (CMA 1983). The court below and I both agree that the
post-trial delay in this case did not legally prejudice appellant
as required by our case law for appellate relief. See United
States v. Gray, 22 USCMA 443, 445, 47 CMR 484, 486 (1973);
United States v. Tardif, 01-0520/CG
United States v. Timmons, 22 USCMA 226, 227, 46 CMR 226, 227
(1973).
Appellant, however, argues that this Court’s decisions
requiring a showing of legal prejudice for reversal do not bind
the Court of Criminal Appeals or preclude it from granting a
lesser form of sentence relief (confinement reduction) based on a
simple showing of unreasonable post-trial delay. But see United
States v. Timmons, supra (holding “post-trial delay, standing
alone without prejudicial error in the trial proceedings, will
not require relief on otherwise proper findings and sentences”).
He cites the “unique” sentence approval powers of the lower
appellate court under Article 66(c), UCMJ, as legal authority for
such action. See also United States v. Collazo, 53 MJ 721 (Army
Ct.Crim.App. 2000)
Appellant’s particular argument in this regard is as follows:
Appellant does not contend that a “legal
error” has been committed such as would
warrant dismissing the charges. Yet, by
the lower court’s ruling that the post
trial delay was “both unexplained and
unreasonable” and “casts a shadow of
unfairness over our military justice
system,” his case was quite possibly one
in which something less than the entire
sentence should have been approved. The
Coast Guard Court, however, by focusing on
this court’s Article 67(c) standard of
review, appears to have overlooked its
responsibility under Article 66(c). While
2
United States v. Tardif, 01-0520/CG
the court did not explicitly say so, it is
apparent from the majority decision that
the court viewed itself as powerless to
award any relief for post trial delay
because Appellant had not established
legal prejudice. While adherence to both
the letter and the spirit of this court’s
precedents is laudable, there is nothing
in the history of this court which
requires a service court to sit on its
hands while a practice which compromises
the integrity of the military justice
system in the eyes of the world is allowed
to flourish.
Final Brief at 31 (emphasis added).
I have read carefully the opinions of the Court of Criminal
Appeals in this case and conclude that it has not overlooked its
responsibility under Article 66(c). In its original opinion, it
stated, “Moreover, on the basis of the entire record, we have
determined that this sentence should be approved.” 55 MJ at 669.
The lower court was well aware of its sentence approval power and
did not state it was barred from considering simple post-trial
delay as one factor among many in determining an appropriate
sentence. Absent such a statement, appellant’s argument is pure
speculation and invites us to overstep our jurisdictional bounds.
See United States v. Higbie, 12 USCMA 298, 300, 30 CMR 298, 300
(1961); see also United States v. Christopher, 13 USCMA 231, 236,
32 CMR 231, 236 (1962).
In addition, I disagree with appellant that the sentence
approval powers of the Courts of Criminal Appeals should be used
3
United States v. Tardif, 01-0520/CG
to “combat the recurrent problem of unexplained and inordinate
post-trial delay in the review of courts-martial.” Final Brief
at 10. Article 66, UCMJ, expressly limits the Courts of Criminal
Appeals’ exercise of this unique sentencing power to matters in
the “entire record” before them. This limitation on the sentence
approval powers under Article 66, UCMJ, is consistent with the
intent of Congress to provide each individual military accused “a
specially suited sentence.” See United States v. Stene, 7 USCMA
277, 281, 22 CMR 67, 71 (1956). Clearly, its exercise as a
judicial tool to remedy unevidenced problems in the military
justice system at large is inconsistent with this statutory
purpose and “ultra vires.” See United States v. Hasting, 461
U.S. 499, 505-07 (1983) (holding that the interests preserved by
the doctrine of harmless error cannot be lightly and casually
ignored in order to chastise what court viewed as prosecutorial
overreaching).
Finally, I am aware that a majority of this Court in the past
has quite broadly construed Article 66(c), UCMJ, to provide to a
Court of Criminal Appeals an essentially unreviewable “carte
blanche to do justice” for a military accused. See United States
v. Claxton, 32 MJ 159, 162 (CMA 1991). In Claxton, this Court
approved the service appellate court’s decision to ignore the law
of waiver in order to grant sentencing relief to an accused for
an unobjected to evidentiary error occurring during a sentence
4
United States v. Tardif, 01-0520/CG
hearing. I did not agree with this movement to create courts of
equity, not of law, in our subordinate court system. United
States v. Claxton, supra at 165 (Sullivan, C.J., concurring in
part and in the result). More recently, in United States v.
Quiroz, 55 MJ 334, 338-39 (2001), a majority of this Court even
went so far as to permit the appellate court below to ignore the
law of multiplicity in granting findings relief while vaguely
citing the service appellate court’s power under Article 66(c),
UCMJ.
This aberrant line of decisions should not be extended here
to hold that the Courts of Criminal Appeals may also flout the
law on post-trial delay in discharging their sentence approval
function. See United States v. Hutchinson, No. 02-5001, __ MJ __
(2002)(holding a Court of Criminal Appeals may not exercise its
sentence approval powers to criticize a state court conviction).
Article 66(c), UCMJ, was not intended by Congress as a means for
a subordinate court to evade or avoid unpopular legal precedent
of this Court. See United States v. Sills, 56 MJ 239 (2002).
This is neither the letter nor the spirit of Article 66(c), UCMJ,
nor is it what the Supreme Court meant by the “power to determine
sentence appropriateness.” See Jackson v. Taylor, 353 U.S. 569,
576 (1957) (holding Article 66(c) permits reassessment of
sentence by service appellate court after legal error found);
see also United States v. Healy, 26 MJ 394, 396 (CMA 1988). In
5
United States v. Tardif, 01-0520/CG
my view, the service appellate court abuses its discretion when
it exercises its sentencing approval power in deliberate
derogation of our legal precedent. See generally United States
v. Dukes, 5 MJ 71, 73 (CMA 1978).
Accordingly, I again dissent and urge this Court to return to
the rule of law as enacted by Congress. See United States v.
Quiroz, supra at 345 (Sullivan, J., dissenting); United States v.
Waymire, 9 USCMA 252, 255, 26 CMR 32, 35 (1958). The sentence
approval powers given to the service appellate courts are indeed
unique, but it is equally clear that Congress did not envision
them as a standardless supervisory remedy for judicially
perceived inequities in the military justice system. See United
States v. Sothen, 54 MJ 294, 296 (2001); United States v.
Christopher, 13 USCMA at 236-37, 32 CMR at 236-237. Moreover,
when the Courts of Criminal Appeals exercise their unique
sentence approval powers under Article 66(c), UCMJ, they should
do so based on the entire record, and consistent with
constitutional and statutory law, as well as our decisional
precedent.* See United States v. Higbie, 12 USCMA at 300, 30 CMR
*
The majority remands this case for reconsideration on the
basis that the appellate court below misunderstood its broad
authority under Article 66(c), UCMJ. It then proceeds to
redefine the law of post-trial delay and hold that unreasonable
prejudicial post-trial delay may be remedied by confinement
credit. I disagree with the first holding and conclude that,
under the majority’s remand, the second holding is clearly dicta
which should not be decided in this case.
6
United States v. Tardif, 01-0520/CG
at 300; United States v. Claxton, supra at 165 (Sullivan, C.J.,
concurring in part and in the result).
In sum, I believe the Court below was right when it stated in
its original opinion in this case:
[W]e are to be guided by the opinions of
the Court of Appeals for the Armed Forces
on this subject [post-trial delay by the
convening authority]. Applying the
standard that Court has set forth, we
find that prejudice directly attributable
to the delay in this case has not been
established, and thus no relief is
warranted.
55 MJ at 669. The court below was following the law. The
majority now is making new law, a process best left to Congress.
7