Wednesday, July 18, 2007

A provocative take on Pena

CAAF's 16 July daily journal includes a summary disposition remanding a case for further consideration of the sentence under United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), accompanied by a provocative concurrence by Judge Ryan.

Pena was a CAAF decision issued during the waning days of the Era of Three Part Harmony before Judges Stucky and Ryan began participating in CAAF decisions. Pena's appeal was a frontal assault on the military's mandatory supervised release program. In his opinion for the court, Chief Judge Effron discussed the limitations on CAAF's power to evaluate the manner in which the Department of Defense executes a court-martial sentence:

Our review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . Accordingly, our review in the present appeal focuses on whether the post-trial conditions at issue: (1) constituted cruel or unusual punishment or otherwise violated an express prohibition in the UCMJ; (2) unlawfully increased Appellant’s punishment; or (3) rendered his guilty plea improvident. To the extent that the issues raised by Appellant otherwise challenge the administration of the Mandatory Supervised Release program, those matters -- including questions regarding the underlying legal authority for the program -- are not before us on direct review.

Pena, 64 M.J. at 264.

CAAF held that Pena had not carried his burden to obtain relief on any of those three bases. As you may recall, Pena then unsuccessfully sought cert. Pena v. United States, 127 S. Ct. 2281 (2007).

Which brings us to this Monday. CAAF remanded United States v. Seawell, in which CAAF had previously granted review, 64 M.J. 317 (C.A.A.F. 2006), for the Air Force Court to consider "WHETHER THE DECISION TO DISAPPROVE TIME SERVED ON MANDATORY SUPERVISED RELEASE AND IMPRISON APPELLANT BEYOND HIS MAXIMUM RELEASE DATE INCREASED APPELLANT’S PUNISHMENT ABOVE THE SENTENCE APPROVED BY THE CONVENING AUTHORITY. SEE UNITED STATES v. PENA, 64 M.J. 259 (C.A.A.F. 2007)." United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. July 16, 2007).

Judge Ryan issued a provocative concurrence, questioning whether under Clinton v. Goldsmith, 526 U.S. 529 (1999), CAAF has jurisdiction to review the manner in which the Mandatory Supervised Release Program is executed or the program's collateral consequences on a particular accused. She suggests that her view is that CAAF may only consider whether the Mandatory Supervised Release Program "results in an increase in the punishment of confinement," thereby creating "an actual alteration of the adjudged sentence." (The answer to that question, of course, would almost invariably be, No.)

I suspect that these are just the first few lines in what will become an extended judicial dialogue. This should be interesting.


John O'Connor said...

My erstwhile NJS colleague Judge Ryan has it exactly right (she must have learned it from some source other than our crim law package). Guert, I swear to God the "they stopped serving me cookies with dinner" case is coming next.

no man said...

I don't get the question CAAF specified to the AFCCA. Who disapproved time served on MSR? If it was the CA, why isn't MSR part of the punishment? If it was the DB, isn't "disapprove" an extremely poor choice of words for their action considering the question specified? Does anyone know the facts of Pena? If so please let us know how he will serve time beyond his max release date.

If Pena was in fact re-incarcerated after MSR, as the question suggests, let's take this to its logical extension. Mandatory Supervised Release avoids judicial scrutiny at CAAF. But, MSR can result in your re-confinement beyond your release date. Won't this result in a lot more prisoner litigation in USDC? Do they have a right to counsel from a military lawyer? Can the President give CAAF authority to review MSR in the MCM? It is an Executive Branch function so why couldn't the President give the power to review it to CAAF? Or are we already treading too lightly on checks and balances?

Sacramentum said...

CAAF's Pena case is at

The AFCCA decision in Seawell is at

No Man said...

Thanks for answering my question Sacramentum, but I asked the wrong question and can't access Seawell on the AFCCA link you provided. I know we have asked this question before, but why are AFCCA opinions on a restricted site? I think they are trying to avoid CAAFlog scrutiny now that they lost JMTG to the dark side (see yesterday's post from christopher.matthews).

Anonymous said...

Looks like the specified question pertains to Seewell, not Pena. From the concurring opinion to the Seewell remand order it does not look like Pena was re-incarcerated at all.

No Man said...

Problem solved, but not solved. The AFCCA Seawell opinion says nothing about Seawell's MSR. So my questions remain . . . .

Christopher Mathews said...

Two points:

1. AFCCA opinions aren't on a restricted site, but there appears to be a problem with the site certificate that can give Microsoft web browsers the willies. I always get a warning message when I surf to the site in MSIE. I always ignore it. Depending on your browser's security settings, you may not have that option.

2. Seawell assigned an error about the MSR program at the CCA, but if I recall correctly (and the usual disclaimers about my memory apply -- it's been almost two years since I wrote the AFCCA decision in Seawell), it was the same sort of error addressed in Pena. If he's now arguing something more specific in light of Pena, that might explain why CAAF wants to hear from the lower court.

NoMan said...

Is there any other site in the world where you can ask a question about a case and a judge from the panel helps provide an answer? Thank you Judge! We'll all stay on the look out for a new Seawell case. Any AF lurkers with inside information they can share would contribute to . . . The CAAflog gossip on how this case may resolve itself at AFCCA.

Fitzcarraldo said...

I'm not counsel on either case, but I'll do my best to clarify. As the language in the issue suggests, Seawell was sent back to confinement from MSR after a violation of the terms of his MSR. Consequently, he had to stay in confinement after his maximum release date.

Pena, as anonymous notes, got out on MSR, but never had to return to confinement. His case dealt with whether being put on MSR in the first place somehow violated the Constitution or UCMJ.