Monday, 20 May 2019

An Air Force Trial Counsel’s Guide to RCM 810 Sentencing Rehearings

Stock Illustration © iStock.com/AndreyPopov
This article was originally published in the 2017 edition of The Reporter, Volume 44, Number 3. Additional resources have been added to enhance the digital version.
It is relatively uncommon for a military appellate court[1] to set aside a sentence and remand a case for a rehearing on the sentence. As such, practitioners handling sentencing rehearings may be uncertain how to proceed, especially when they flip open the Rules for Courts-Martial (RCM) to Rule 810. Procedures for rehearings, new trials, and other trials, and find that it says: “the procedure shall be the same as in an original trial, except that the portion of the procedure which ordinarily occurs after challenges and through and including the findings is omitted, and except as otherwise provided in this rule.”[2] Having had the unique opportunity to have been involved in two such cases, we offer this article as a trial counsel’s guide to the confusing and infrequently seen RCM 810 sentencing rehearing. It should be of assistance to trial counsel serving at the base-level office, as well as to general court-martial convening authority advisors at the Numbered Air Force-level office.

Acronyms

AFCCA Air Force Court of Criminal Appeals
CCRO Continued Confinement Review Officer
GCMCA General Court-Martial Convening Authority
PCRO Pretrial Confinement Review Officer
PDS Personal Data Sheet
RCM Rules for Courts-Martial
TJAG The Judge Advocate General
UCMJ Uniform Code of Military Justice
VTC Video Teleconference

Background—How Does a Case Get to a Sentencing Rehearing?

In preparing for a sentencing rehearing, it is helpful to understand how a case gets to this point. Under RCM 1201(a), The Judge Advocate General (TJAG) is required to refer all cases with an approved sentence including a punitive discharge or confinement for one year or more to the Air Force Court of Criminal Appeals (AFCCA) for review.[3] Once a case is referred to it under this rule, AFCCA “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.”[4] Findings and sentences, or portions thereof, not affirmed are set aside and either dismissed or sent to a rehearing.[5] In cases where AFCCA has set aside the sentence and ordered a sentencing rehearing, and the case has not been further appealed,[6] the court’s decision is transmitted directly from AFLOA/JAJM to the General Court-Martial Convening Authority (GCMCA).[7] When it does so, AFLOA/JAJM provides an accompanying memorandum summarizing the posture of the case and the required action going forward.

Upon receipt, the convening authority must publish a supplementary court-martial order indicating that a rehearing will be held or that a rehearing is impracticable.[8] Directing a sentencing hearing can be done two ways: (1) in a specific, standalone memorandum, or (2) in the standard member selection and referral documents[9] signed by the convening authority. Either way, the documentation should clearly indicate that the convening authority is, in accordance with the decision of the appellate court, directing a rehearing to address the sentence for the remaining charges and specifications of which the appellant[10] was previously found guilty. Once this order is signed, the stage is set for the sentencing rehearing, pending formal re-referral of the charges to that forum.

Trial counsel should be aware that once the appropriate convening authority receives the transmission from AFLOA/JAJM and the appellate court decision authorizing the rehearing, the Appellant must be “brought to trial” within 120 days from “the date that the responsible convening authority receives the record of trial and the opinion authorizing or directing a rehearing.”[11] While one is typically deemed to have been “brought to trial” at the time of arraignment,[12] in the case of a sentencing rehearing (where there is no arraignment) the Appellant is brought to trial at the time of the first session under RCM 803.[13] Periods of “excludable delay” may be approved by either the military judge or the convening authority as they would in any other court-martial.[14]

Continued Confinement—How Can an Appellant Remain in Jail When the Sentence Has Been Set Aside?

One might assume that when an appellate court sets aside a sentence and remands a case for a sentencing rehearing, the appellant is immediately set free during the pendency of the rehearing. After all, at that point, there is technically no sentence. This is not how it works though because military appellate court rulings are not self-executing.[15] Military appellate courts rely on TJAG “and lower officials to execute” their orders.[16]

Therefore, the appellant remains in confinement until the government’s opportunities for reconsideration and appeal have run their course.[17] However, once TJAG certifies (appeals) a case to a higher court, or makes the decision not to, the appellant “obtains an interest in the favorable lower-court decision.”[18] Accordingly, at that point, the appellant must be immediately released by order of the convening authority or be brought before a RCM 305-like[19] “continued confinement hearing,” as required by United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).[20] This hearing is required to be held within 7 days of TJAG’s decision,[21] and the remedy for the government’s failure to do so is “day-for-day administrative credit (beginning on the eighth day) against the sentence as finally affirmed….”[22]

When should the convening authority immediately release the appellant? In providing advice, JAGs should consider, among other factors, the time already served in confinement vis-à-vis the maximum allowable punishment for the remaining offenses, as well as the likelihood that the Appellant will engage in “serious criminal misconduct” upon release.[23] For example, it would likely be appropriate to release an appellant who had already served three years in confinement, but who remained convicted only of adultery and dereliction of duty.[24] In contrast, release may not be appropriate for an Appellant who had served three years in confinement but remained convicted of aggravated sexual assault.[25]

The convening authority may order the Appellant’s release through a signed memorandum to the confinement facility’s parole and release department indicating a determination that continued confinement is not appropriate and that he or she is thereby ordering the Appellant’s immediate release. Alternatively, if the convening authority concludes continued confinement is appropriate, that convening authority should immediately appoint a Continued Confinement Review Officer (CCRO) in writing and sign an order directing “a continued confinement hearing to be held under RCM 305 and in accordance with Miller to determine whether [appellant] will remain confined pending completion of the sentencing rehearing in the case of U.S. v. [Appellant].”

While the pertinent case law does not enumerate the requirements for CCROs, it would be prudent for legal offices to ensure that individuals appointed as CCROs meet the same requirements for Pretrial Confinement Review Officers (PCROs) found in AFI 51-201 para. 3.2.4.1 and para. 3.2 of the AFLOA/JAJM Guide for PCROs[26] The continued confinement hearing generally follows the script found at Attachment A of the PCRO guide, substituting references to pretrial confinement with continued confinement, as necessary. A JAG, unaffiliated with the case, is appointed as legal advisor to the CCRO.

The standard of proof at this hearing is a preponderance of the evidence and, except for Mil. R. Evid. 302, Mil. R. Evid. 305, and the rules concerning privileges, the Military Rules of Evidence do not apply.[27] Unlike the pretrial confinement hearing under RCM 305, the appellant in a continued confinement hearing is not entitled to multiple reviews. A single hearing satisfies Miller’s requirements.[28] Moreover, the CCRO need not make all of the findings set forth in RCM 305. Rather, Miller only requires the CCRO to determine whether continued confinement on appeal is necessary because (1) it is foreseeable that the Appellant will not appear at trial or (2) that Appellant will engage in serious criminal misconduct.[29] Additionally, if either of those two conditions are met, the CCRO must also determine whether less severe forms of restraint are inadequate.[30] At the conclusion of the hearing, the CCRO writes and submits a report to the convening authority detailing the background and posture of the case, the participating parties, the findings, and the ultimate decision. The legal advisor assists in preparing this report. The CCRO’s appointment memorandum, the Report of Result of Trial from the original court-martial, and exhibits admitted at the continued confinement hearing should be attachments to the final report.

Trial teams preparing for these hearings should note that the appellant is entitled to appear at the hearing with the assistance of defense counsel.[31] As such, trial teams should anticipate arranging for the Appellant to appear in person or via video teleconference (VTC) from the courtroom at the Appellant’s confinement facility. The Air Force Security Forces Center’s Corrections Division at Joint Base San Antonio-Lackland, Texas, and the Air Force Liaison on staff at the appellant’s confinement facility can coordinate arrangements.[32]

Referral—How Do You Refer a Case That Has Already Been Referred?

With continued confinement handled, you turn to the question of how to take the case forward. With preferral and original referral already accomplished months or years ago—what do you do? It is time for “re-referral.”

“Advice Regarding Post-Trial Action”

The first step is to write, and have the convening authority’s Staff Judge Advocate sign, the “Advice Regarding Post-Trial Action.” This is the sentencing rehearing’s equivalent to Pretrial Advice. In addition to containing the mandatory contents required by Art. 34 of the UCMJ and RCM 406(b),[33] the Advice Regarding Post-Trial Action should clearly articulate what charges and specifications were originally referred, what charges and specifications the Appellant was convicted of, the original sentence, the charges and specifications which were set aside (if applicable) and the charges and specifications which were affirmed.[34] Upon completion, the advice is forwarded to the convening authority with the rest of the referral documents.[35]

Member Selection and Re-referral Memorandum

The second step is to draft the member selection/referral memorandum for the convening authority’s signature.[36] Member selection is required in all sentencing rehearing cases because the rules provide that the appellant is not constrained by the forum selection made at the original trial.[37] In other words, even if the appellant was originally tried by military judge alone, appellant can still change his mind and elect to be sentenced by members at the rehearing, or vice versa. In the event the same forum is selected, members who served on the original panel may not serve on the panel in the rehearing.[38] There is no prohibition on the judge from the original trial presiding over the rehearing, but there is also no requirement that the original judge preside over the rehearing.[39]

The member selection/referral memorandum should also expressly state that the convening authority is “directing a sentencing rehearing to take place at __ to address the remaining charges and specifications of which [the Appellant] was found guilty in accordance with the decision of the AFCCA, dated __.”[40] After selecting members, the convening authority should sign the member selection/referral memorandum, re-referring the case and formally directing the sentencing rehearing.[41] It is recommended that copies of the original charge sheet, unexpurgated court-martial order, appellate court decision, and AFLOA/JAJM transmittal memorandum accompany the advice and the member selection/referral memorandum as attachments.

The “Hinged” Referral

The third step is to complete the re-referral with the DD Form 458. This is where it gets interesting. Because the case has previously been referred, Section V on the original charge sheet will already be filled out. Therefore, the legal office must prepare a “hinged referral.” This is accomplished by taking page 2 from a blank DD Form 458 and filling out Section V to read “For a rehearing on sentence only, as ordered by General Court-Martial Order No. __, Headquarters, ___, dated ________, as to the charge(s) and specification(s) of which the accused was found guilty and affirmed by AFCCA’s decision, dated ____.”[42] The newly completed referral section is then cut out or folded over and stapled directly on top of the Section V of the original charge sheet.[43] It should be attached in such a way that the new referral can be flipped up to reveal the original referral, hence the name “hinged referral.” Under no circumstances should the original referral be removed or obliterated.[44]

New Convening Order

Once the aforementioned documents have been completed, the final step is to prepare a new convening order. In keeping with the goal of clearly identifying the case’s unique status, the prefatory language of the convening order should read “Pursuant to the authority contained in Special Order ____, Department of the Air Force, dated ______, a general (or, if applicable, special) court-martial is hereby convened to conduct a sentencing rehearing in accordance with the sentencing rehearing order dated _____.” Once officially re-referred, the sentencing rehearing is then docketed through the Central Docketing Office like any other case.

Preparing for the Sentencing Rehearing Ensuring the Appellant’s Appearance

Once the case has been re-referred and docketed for a sentencing rehearing, it is time to prepare for the rehearing itself. In instances where the Appellant has remained in confinement during the pendency of the rehearing, trial counsel’s first task after docketing is to make arrangements for the physical transfer of the appellant for the rehearing. If the Appellant is still confined, these arrangements must be coordinated through the Air Force Security Forces Center’s Corrections Division and through the Air Force liaison on staff at the Appellant’s confinement facility. Be advised that Security Forces personnel from the base where the rehearing occurs must travel to the confinement facility and personally escort the Appellant back. If no on-base confinement facility exists, the trial team should make plans for the Appellant to be confined at a local, off-base facility through an existing Memorandum of Agreement.

In preparation for the rehearing, trial counsel should anticipate defense strategies unique to sentencing rehearings and prepare accordingly.

Motions and Hearing Preparation

In preparation for the rehearing, trial counsel should anticipate defense strategies unique to sentencing rehearings and prepare accordingly. One defense tactic may be to file a motion for appropriate relief for illegal pretrial punishment under Article 13, UCMJ.[45] Trial counsel should remember that illegal pretrial punishment analysis involves a two-prong test. First, courts address whether the complained-of actions were performed with intent to punish.[46] Second, if no punitive intent is found, a court must address whether the government’s actions furthered a legitimate non-punitive objective. [47]

Restoration of pretrial rank and pay may present a thorny issue, especially given recent changes in the law. Article 75(a), UCMJ, provides that “all rights privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved…shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.”[48] In Howell v. United States, 75 M.J. 386, 392–93 & n. 5 (C.A.A.F. 2016), the court contradicted precedent from Article III courts and held that, after rehearing is ordered and the accused is no longer confined, the accused should then receive full restoration of rank and pay. If trial counsel have a case where rank and pay were not restored, Howell does provide aid. In that case, the court found that failure to restore rank and pay (in reliance on pre-Howell precedent) was not inherently unreasonable.[49] Thus, in those circumstances failure to restore rank and pay lacked punitive intent and would not necessarily constitute illegal pretrial punishment.

In raising this Article 13 issue, the defense may argue that any confinement after the appellate court set aside the sentence is illegal. When facing this argument, trial counsel should argue (as the facts allow): (1) that there was no intent to punish, and (2) that the government merely pursued its legitimate non-punitive objective of evaluating appellate options. Recall that when AFCCA sets aside a sentence, the government has 30 days to file for reconsideration,[50] and the appellant stays confined during this time. If AFCCA denies the motion for reconsideration, the government then has 60 days to certify the case to CAAF.[51] The appellant also stays confined during this time period. As long as the government meets these timelines (and, as the case may be, a timely[52] continued confinement hearing was properly conducted) any confinement between the appellate court setting aside the sentence and the sentencing rehearing will not be illegal, assuming no punitive intent and compliance with relevant rules and procedures.

Following the rehearing, it is possible that the appellant’s new sentence will be significantly lighter than his original sentence. In this case, the defense may argue that confinement credit for time the appellant has already served should be converted into Article 13 credit for other portions of the appellant’s sentence, such as the punitive discharge or reduction in rank. In the face of this argument, trial counsel should note that the military appellate courts have declined to create an equivalence between certain types of punishment because confinement and “reprimands, reductions in rank, and punitive discharges are so qualitatively different…that conversion is not required as a matter of law.”[53]

One of trial counsel’s most difficult challenges may be locating witnesses. In most cases, a significant amount of time will have passed since the original trial and even more time will have passed since the offenses were actually committed. With the passage of such time, witnesses who testified in the original sentencing hearing may have separated from the military, moved, changed their names, or otherwise become unavailable. Moreover, witnesses who can be located will often have mentally and emotionally moved on from the first trial and have no interest in participating in the sentencing rehearing. While such witnesses can be subpoenaed to appear, there are other options. First, trial counsel and defense counsel can enter into stipulations of fact or expected testimony regarding the sentencing evidence.[54] Second, trial counsel can have relevant portions of the record of trial from the findings portion of the original court-martial offered as a written exhibit for the members to read to themselves in open court.[55] Third, trial counsel can coordinate with the court reporter to obtain the audio record from the original trial and then have it played aloud in open court.[56] If trial counsel is attempting to admit portions of the Record of Trial from the original court-martial, either in writing or in audio format, it is strongly recommended that this be handled with a motion in limine to pre-admit the evidence so as to ensure all parties are on the same page and to avoid delays.[57] Finally, if the appellant pled guilty at the original trial[58] to any of the offenses for which re-sentencing was ordered, Trial Counsel can offer documentary or audio records of the plea colloquy (Care[59] inquiry) at the rehearing.

The Sentencing Rehearing

Once motions have been handled, it is necessary to prepare for the rehearing itself. A good first step is to prepare the script. The script for a sentencing rehearing can be found in the Electronic Military Judge’s Benchbook by clicking on: “Appendices in DA PAM 27-9,” and then “Rehearings, Other Trials, and Revision Procedures.” It is not found under “Trial Scripts.” While preparing the script, Trial Counsel should take note that there are several mandatory appellate exhibits that need to be handled at the very beginning of the rehearing. These include: the charge sheet for the original trial, the promulgating order for the prior proceedings, the appellate court decision authorizing the sentencing rehearing, the transmittal memorandum from AFLOA/JAJM returning the case to the convening authority for further action, the Staff Judge Advocate Advice Regarding Post-Trial Action, and the convening order for the rehearing.

The script for a sentencing rehearing can be found in the Electronic Military Judge’s Benchbook by clicking on: “Appendices in DA PAM 27-9,” and then “Rehearings, Other Trials, and Revision Procedures.” It is not found under “Trial Scripts.”

During the rehearing itself, and especially when announcing the general nature of the charges, trial counsel should take special care to announce only those charges and specifications of which the Appellant remains convicted after the appellate court ruling, and not to announce any of the charges and specifications which were set aside. Moreover, counsel from both sides should not disclose the previously adjudged or approved sentence from the original trial.[60] In judge-alone cases, this may be unavoidable, but the military judge must nevertheless not consider the previously adjudged or approved sentence when determining an appropriate sentence.[61]

Trial counsel should carefully review the procedural rules as they existed at the time of the original trial. Procedural rules are, in effect, “frozen” at the time of trial.[62] This will resonate strongly in areas of the law with significant change in recent years, such as victims’ rights, where the procedural landscape has transformed. One common example is maximum punishment. Thus, when announcing the maximum punishment, trial counsel should ensure that there has not been a change in the maximum punishment since the original trial—the maximum punishment that can be adjudged at a sentencing rehearing is limited to that which was in effect at the time of the original trial (for the offenses of which the appellant remains convicted). Additionally, when calculating the sentence which will be argued for in sentencing arguments, trial counsel should be aware that Article 63, UCMJ, and RCM 810(d) prohibits sentences at rehearings from exceeding, or being more severe than, the sentence approved at the original trial.[63]

When offering the appellant’s Personal Data Sheet (PDS) as RCM 1001(b) sentencing evidence, trial counsel should ensure that it is current as of the date of the rehearing, and not as of the original trial date. Finally, trial counsel should be prepared to report the amount of confinement credit Appellant may receive. Aside from these specific modifications, the sentencing rehearing will proceed similarly to the standard court-martial sentencing phase procedures.

Sentencing rehearings require a unique tactical approach and certain modifications to the standard court-martial procedures…

Conclusion

Article 63, UCMJ, and RCM 810 govern the sentencing rehearing, and Trial Counsel should be familiar with those provisions. Unfortunately, those provisions are not as helpful to the uninitiated as one might hope. While the procedures are generally the same as in an original trial, sentencing rehearings require a unique tactical approach and certain modifications to the standard court-martial procedures, which can be confusing. This guide should help Trial Counsel overcome that confusion and prosecute these cases in a smooth and efficient manner.

About the Authors

Major Mark E. Coon, USAF

(B.A., Syracuse University; J.D., West Virginia University) is the Chief of Military Justice at the 502d Air Base Wing at Joint Base San Antonio-Fort Sam Houston, Texas.

Captain Matthew L. Blyth, USAF

(B.A., Vanderbilt University; J.D., St. Mary’s University School of Law) is a Special Victims’ Counsel at Joint Base San Antonio-Fort Sam Houston, Texas.

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Endnotes

[1] This article contemplates a scenario in which the Air Force Court of Criminal Appeals (AFCCA) remands a case, though the guidance provided here generally applies to cases remanded by the Court of Appeals for the Armed Forces (CAAF) as well.
[2] Manual for Courts-Martial, United States, R.C.M. 810(a)(2) (2016) [hereinafter MCM].
[3] Uniform Code of Military Justice (UCMJ) art. 66(b) (2016); MCM, supra note 2, R.C.M. 1201(a).
[4] UCMJ art. 66(c) (2016).
[5] UCMJ art. 66(d) (2016).
[6] See UCMJ art. 67 (2016) and R.C.M. 1203(c)(1). “The Judge Advocate General may forward the decision of the Court of Criminal Appeals to the Court of Appeals for the Armed Forces for review with respect for any matter of law.”
[7] See U.S. Dep’t of the Air Force, Air Force Instr. 51-201, Administration of Military Justice para. 11.12.1 (6 June 2013) [hereinafter AFI 51- 201].
[8] AFI 51-201, para. 11.2.4. See also, UCMJ art. 63(e) (2016) and R.C.M. 1203(c)(2).
[9] See fn 31 infra.
[10] While R.C.M. 810 uses the term “Accused,” the authors have chosen to use the term “Appellant” for the purpose of aiding readers in understanding this article. “Accused” is counterintuitive when considering a person who is, at every stage of the proceeding, convicted.
[11] MCM, supra note 2, R.C.M. 707(b)(3)(D).
[12] MCM, supra note 2, R.C.M. 707(b)(1).
[13] MCM, supra note 2, R.C.M. 707(b)(3)(D).
[14] MCM, supra note 2, R.C.M. 707(c).
[15] United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997) (citing United States v. Kraffa, 11 M.J. 453, 455 (C.M.A. 1981)).
[16] Id. (citing United States v. Tanner, 3 M.J. 924, 926 (A.C.M.R. 1977).
[17] From the date of the appellate court ruling, the government has 30 days to file a motion for reconsideration. Rule 19(b)(2), AFCCA Rules of Practice & Procedure (20 May 2016). If reconsideration is denied or not pursued, the government has another 60 days to certify (appeal) the case to a higher court. Rule 19(b) CAAF Rules of Practice & Procedure (1 March 2016). Once the case is certified to a higher court, the appellant must either be immediately released or brought before a continued confinement hearing.
[18] United States v. Katso, 2017 CCA LEXIS 82, 14 (A.F. Ct. Crim. App. February 2, 2017).
[19] R.C.M. 305 deals with pretrial confinement hearings.
[20] Miller, 47 M.J. at 352.
[21] Katso, 2017 CCA LEXIS 82, at 13.
[22] Katso, 2017 CCA LEXIS 82, at 14.
[23] MCM, supra note 2, R.C.M. 305(h)(2)(B). “Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States.”
[24] Adultery and dereliction of duty are nonviolent offenses and have a combined max confinement of just 18 months. See MCM, supra note 2, Appendix 12–Maximum Punishment Chart.
[25] Aggravated sexual assault, a violent offense, has a max confinement of 30 years. See id.
[26] These instructions set forth that confinement hearing officers should be “mature” and that certain personnel may not be appointed.
[27] MCM, supra note 2, R.C.M. 305(i)(2)(A)(ii – iii). See also AFLOA/JAJM Guide for PCROs, at Attachment A.
[28] Katso, 2017 CCA LEXIS 82, at 11.
[29] Id. at 12 (citing Moore v. Akins, 30 M.J. 249 (C.M.A. 1990)).
[30] Id.
[31] AFI 51-201, para. 3.2.4.3.
[32] Notably, the United States Disciplinary Barracks at Fort Leavenworth, Kansas and the Navy Brigs, have an Air Force Liaison on staff who can assist with scheduling the use of the courtroom and the VTC there, as well as arranging the Appellant’s timely appearance (or physical transfer, as the case may be).
[33] Sample Pretrial Advice can be found in AFI 51-201, Figure 4.8.
[34] In complex cases with multiple charges and specifications, identifying and articulating exactly which charges and specifications were set aside and which were affirmed can be an arduous task. It is recommended that trial counsel rely heavily on the appellate court’s written decision to correctly identify the remaining charges and specifications.
[35] AFI 51-201, para. 4.6.
[36] See AFI 51-201, para. 4.7. See also MCM, supra note 2, R.C.M. 601.
[37] See MCM, supra note 2, R.C.M. 810(b)(2). “The existence or absence of a request for trial by military judge alone at a previous hearing shall have no effect on the composition of a court-martial on rehearing.” See also MCM, supra note 2, R.C.M. 810(b)(3). “The accused at a rehearing…shall have the same right to request enlisted members or trial by military judge alone as the accused would have at an original trial.”
[38] MCM, supra note 2, R.C.M. 810(b)(1).“No member of the court-martial which previously heard the case may sit as a member of the court-martial at any rehearing….”
[39] MCM, supra note 2, R.C.M. 810(b)(2).
[40] The member selection/referral memorandum should select both officer members and enlisted members and identify which officers are to be excused in the event the Appellant elects enlisted members. This will prevent short-notice scrambling in the event the Appellant makes an eleventh hour change in forum selection.
[41] See AFI 51-201, para. 4.7.
[42] AFI 51-201, para. 4.9.2.
[43] AFI 51-201, para. 4.9.1.
[44] Id.
[45] Article 13 states that “[N]o person, while being held for trial, may be subjected to punishment other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence.” UCMJ art. 13 (2016).
[46] United States v. Washington, 42 M.J. 547, 562 (A.F. Ct. Crim. App. 1995).
[47] Id. See also United States v. Zarbatany, 70 M.J. 169, 176–77 (C.A.A.F. 2011) (explaining that courts examining Article 13 violations should consider “the nature of the [violations], the harm suffered by the appellant, and whether the relief sought is disproportionate to the harm suffered or in light of the offenses for which the appellant was convicted”).
[48] UCMJ art. 75(a) (2016) (emphasis added).
[49] Howell, 75 M.J. at 393.
[50] Rule 19(b)(2), AFCCA Rules of Practice and Procedure (20 May 2016).
[51] Rule 19(b) CAAF Rules of Practice & Procedure (1 March 2016).
[52] See fn 22 supra.
[53] United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003); United States v. Rosendahl, 53 M.J. 344, 347–48 (C.A.A.F. 2000).
[54] This could also conceivably be accompanied by a pretrial agreement in which the Government agrees to a sentencing cap in exchange for the Appellant’s stipulation to the Government’s evidence.
[55] “The contents of the record of the original trial consisting of evidence properly admitted on the merits relating to each offense of which the accused stands convicted but not sentenced may be established by any party whether or not testimony so read is otherwise admissible….” MCM, supra note 2, R.C.M. 810(a)(2)(A).
[56] See fn 55 supra. If pursuing this approach, it is recommended that Trial Counsel coordinate with the Court Reporter well in advance because it will take the Court Reporter a long time to splice and edit the audio ahead of the rehearing.
[57] These two tactics can only be utilized if the previous record has been admitted in evidence by the military judge because “No member may, upon rehearing…examine the record of any former proceedings in the same case except when permitted to do so by the military judge after such matters have been received in evidence.” MCM, supra note 2, R.C.M. 810(c)(1).
[58] The Accused at a rehearing only on sentence may not withdraw any plea of guilty upon which findings of guilty are based. MCM, supra note 2, R.C.M. 810(a)(2)(B).
[59] United States v. Care, 18 M.J. 535 (C.M.A. 1969).
[60] See United States v. Rhodes, 64 M.J. 630, at 632. (A.F. Ct. Crim. App. 2007)
[61] See MCM, supra note 2, R.C.M. 810(d) Discussion. “An appropriate sentence on a…reheard offense should be adjudged without regard to any credit to which the accused may be entitled.” See also United States v. Cruse, 53 M.J. 805, 809 (A. Ct. Crim. App. 2000).
[62] MCM, supra note 2, R.C.M. 810(a)(1).
[63] UCMJ art. 63 (2016); MCM, supra note 2, R.C.M. 810(d)(1).

 

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