U.S. v. Johnson, 86 M.J. 8

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 66(d)(2) authorizes a CCA to correct errors that occur after the judgment is entered into the record under Article 60c, UCMJ; Article 60c, UCMJ, requires the military judge to enter the judgment of the court into the record of trial, and further requires that the judgment of the court be provided to the accused and any victim of the offense and made available to the public; Article 60c(a), UCMJ, authorizes the President to prescribe rules for the preparation and distribution of the judgment of a court-martial; acting under that authority, the President has directed that the EOJ shall consist of, among other things, any additional information that the Secretary concerned may require by regulation; in this case, Department of the Air Force regulations were expressly promulgated pursuant to RCM 1111, and those regulations, which instruct the SJA to indorse the EOJ after it has been signed by the military judge, are how the SECAF includes additional information as part of the EOJ; accordingly, any information in the indorsement is part of the EOJ and cannot be an error in the processing of the court-martial after the judgment was entered into the record under Article 66(d)(2), UCMJ, and thus a CCA has no authority to act upon that information in the indorsement

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF has an independent obligation to determine that it has jurisdiction in a given case; it reviews questions of jurisdiction de novo; it also reviews de novo the authority of a CCA under Article 66, UCMJ
2. the extent of the CAAF's authority to act in any case is laid out in Article 67(c)(1), UCMJ; under subsection (A) of that provision, the CAAF has authority to act upon the findings and sentence set forth in the entry of judgment, as affirmed or set aside as incorrect in law by the CCA; however, because the indication that an accused, by virtue of being found guilty of an offense, is prohibited under 18 USC § 922 from carrying a firearm is not part of the findings or sentence, so Article 67(c)(1)(A), UCMJ, does not provide the CAAF with authority to act upon the § 922 indication
3. the extent of the CAAF's authority to act in any case is laid out in Article 67(c)(1), UCMJ; subsection (B) of Article 67(c)(1), UCMJ, provides the CAAF with authority to act upon a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by the CCA; assuming that an EOJ qualifies as a judgment by a military judge under subsection (B), the CAAF's authority to act upon a § 922 indication in the EOJ is predicated upon the CCA having either affirmed or set aside the § 922 indication in the first instance; but under Article 66(d)(1), UCMJ, the CCA may act only with respect to the findings and sentence as entered into the record under Article 60c, UCMJ; because the § 922 indication is neither a finding nor a sentence, even if it is part of the judgment, it is not a part of the judgment capable of being affirmed or set aside as incorrect in law by the CCA as Article 67(c)(1)(B), UCMJ, requires for the CAAF to have authority to act upon it; accordingly, subsection (B) does not grant the CAAF authority to act upon a § 922 indication in the EOJ
4. the CAAF lacks authority to direct the modification of the 18 U.S.C. § 922 prohibition noted on a Staff Judge Advocate's indorsement to the entry of judgment because no CCA has the authority to act upon that indication in the first instance

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

1. the CAAF has an independent obligation to determine that it has jurisdiction in a given case; it reviews questions of jurisdiction de novo; it also reviews de novo the authority of a CCA under Article 66, UCMJ