CAAF's focus on its own jurisdictional limitations continues

Last Wednesday's Daily Journal includes an interesting summary disposition. United States v. Greenway, No. ACM 37008 (A.F. Ct. Crim. App. May 31, 2007) (per curiam), was a merits submission in which the Air Force Court sua sponte identified a problem with one of the findings. The court set aside the finding of guilty to one specification, but nevertheless affirmed the adjudged and approved sentence of a bad-conduct discharge and reduction to E-1. The Air Force Court articulated this denial of meaningful sentence relief in a rather curious fashion. The court wrote: "After carefully reviewing the record of trial, we are convinced beyond a reasonable doubt the members would have imposed at least a bad-conduct discharge and reduction to the grade of E-1 in the absence of error. See Doss, 57 M.J. at 185. Accordingly, we reassess the sentence as follows: a bad-conduct discharge and reduction to E-1." Id., slip op. at 4. AT LEAST the same sentence that the members had actually adjudged? That seems to suggest that the members might have sentenced the accused to a greater sentence had he been convicted of one less specification. Also, that language sure makes it look like the court is actually reducing the adjudged sentence. I've relooked at the opinion three times to make sure that I'm correct that the reassessment left the adjudged and approved sentence unchanged. What an odd way to say that the court is affirming the sentence as adjudged.

Following the Air Force Court's ruling, A1C Greenway petitioned CAAF, which granted his petition and summarily set aside AFCCA's opinion last Wednesday. United States v. Greenway, __ M.J. ___, No. 07-0740/AF (C.A.A.F. Nov. 7, 2007) (summary disposition). The reason for CAAF's action is that the Air Force Court omitted a finding when it set out the case history. As CAAF noted, "[I]n summarizing and modifying the approved findings, the Court of Criminal Appeals made no mention of the guilty findings to Charge IV and its Specification (making a false pass) that had been approved by the convening authority." CAAF then observed:

Because this offense went unmentioned, it is unclear whether it was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to findings as affirmed by a court of criminal appeals.

CAAF's statement about reassessment is somewhat enigmatic. Realizing that A1C Greenway was actually convicted of still another spec certainly wouldn't have convinced AFCCA that instead of awarding no meaningful relief, it should set aside a portion of the sentence. So this appears to be something of a throwaway line. That heightens the importance of the second sentence: CAAF has no jurisdiction to act on the false pass offense because it wasn't affirmed by AFCCA. It seems that CAAF's jurisdictional limitation antenna is out. Speaking of which, CAAF's oral arguments in Lopez de Victoria and Michael are back-to-back this Wednesday starting at 0900. See you there.