U.S. v. Brown, 81 M.J. 1

First Principles: Jurisdiction: Generally

1. jurisdiction is a question of law that an appellate court reviews de novo
2. the All Writs Act grants the power to all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s jurisdiction; and (2) whether the requested writ is necessary or appropriate
3. to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence
4. the Supreme Court has held that the power to issue writs is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal; the power also extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected; the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court
5. potential future actions on the part of other official actors are sufficient for potential jurisdiction in proceedings that have already begun
6. potential jurisdiction includes circumstances in which the lower court’s statutory jurisdiction is attenuated and dependent upon the discretionary acts of others who exercise authority in the military justice system; potential jurisdiction exists as long as some pathway to the lower court’s statutory jurisdiction remains
7. an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress
8. in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review

First Principles: Jurisdiction: Of Courts of Criminal Appeals

1. Congress created a bifurcated statutory scheme for the appellate review of completed courts-martial, depending upon the sentence approved by the convening authority; a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; in this case, because the accused’s sentence was below the Article 66(b), UCMJ, threshold for mandatory review at the lower court, the Article 66(b), UCMJ, pathway to appellate review was unavailable to him; however, Article 69, UCMJ, provided a second pathway to review before a court of criminal Appeals for an accused convicted and sentenced at a special court-martial; cases not reviewed by the lower court pursuant to Article 66(b), UCMJ, such as the instant case tried at a special court-martial, can still be reviewed by the Judge Advocate General upon application of the accused for, inter alia, error prejudicial to the substantial rights of the accused, and the Judge Advocate General can then choose whether to send the case to the lower court for review under Article 66, UCMJ
2. in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review
3. for courts-martial referred on or after January 1, 2019, pursuant to Article 66(b)(1)(D), an accused is entitled to have the courts of criminal appeals review his case with respect to matters of law if the accused applies for review from a decision of TJAG under Article 69(d)(1)(B) and the application has been granted by the court; thus, it is no longer the case that only those cases that the Judge Advocate General elects to refer to the court of criminal appeals under Article 69(d), UCMJ, may be heard by the lower court

Trial Stages: Writs and Interlocutory Appeals: Generally

1. the All Writs Act grants the power to all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s jurisdiction; and (2) whether the requested writ is necessary or appropriate
2. to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence
3. the Supreme Court has held that the power to issue writs is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal; the power also extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected; the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Congress created a bifurcated statutory scheme for the appellate review of completed courts-martial, depending upon the sentence approved by the convening authority; a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; in this case, because the accused’s sentence was below the Article 66(b), UCMJ, threshold for mandatory review at the lower court, the Article 66(b), UCMJ, pathway to appellate review was unavailable to him; however, Article 69, UCMJ, provided a second pathway to review before a court of criminal Appeals for an accused convicted and sentenced at a special court-martial; cases not reviewed by the lower court pursuant to Article 66(b), UCMJ, such as the instant case tried at a special court-martial, can still be reviewed by the Judge Advocate General upon application of the accused for, inter alia, error prejudicial to the substantial rights of the accused, and the Judge Advocate General can then choose whether to send the case to the lower court for review under Article 66, UCMJ
2. in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review
3. for courts-martial referred on or after January 1, 2019, pursuant to Article 66(b)(1)(D), an accused is entitled to have the courts of criminal appeals review his case with respect to matters of law if the accused applies for review from a decision of TJAG under Article 69(d)(1)(B) and the application has been granted by the court; thus, it is no longer the case that only those cases that the Judge Advocate General elects to refer to the court of criminal appeals under Article 69(d), UCMJ, may be heard by the lower court

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. jurisdiction is a question of law that an appellate court reviews de novo
2. to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence
3. an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress