United States v. Chin

          This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE      ARMED FORCES
                          _______________

                        UNITED STATES
                           Appellant
                                   v.
               Daniel H. CHIN, Staff Sergeant
                United States Air Force, Appellee
                            No. 15-0749
                        Crim. App. No. 38452
        Argued January 13, 2016—Decided April 26, 2016
              Military Judge: Joshua E. Kastenberg
For Appellant: Major Matthew J. Neil (argued); Colonel Katherine
E. Oler and Gerald R. Bruce, Esq. (on brief).
For Appellee: Captain Travis L. Vaughan (argued).
Amici curiae for Appellant: Colonel Mark H. Sydenham, Major A.
G. Courie III, and Captain Jihan Walker (on brief)—for the United
States Army Appellate Government Division; Colonel Mark K.
Jamison, USMC, Major Suzanne M. Dempsey, USMC, and Lieu-
tenant Amy L. Freyermuth, JAGC, USN (on brief)—for the United
States Navy and Marine Corps Appellate Government Division;
Stephen P. McCleary, Esq. (on brief) and Lieutenant Tereza Z.
Ohley—for the United States Coast Guard Appellate Government
Division.
Amicus curiae for Appellee: Colonel Stephen C. Newman, USMC,
and Major Zachary D. Spilman, USMCR (on brief)—for the Unit-
ed States Marine Corps Defense Services Organization.
Judge RYAN delivered the opinion of the Court, in which Chief
Judge ERDMANN and Senior Judge SENTELLE joined. Judge
STUCKY filed a separate dissenting opinion, in which Judge
OHLSON joined.
                          _______________

Judge RYAN delivered the opinion of the Court.1



1 Senior Judge David B. Sentelle, of the United States Court of
Appeals for the District of Columbia Circuit, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 

10 U.S.C. § 942

(f) (2012).
               United States v. Chin, 15-0749/AF
                     Opinion of the Court

    The Government appeals the United States Air Force
Court of Criminal Appeals’ (AFCCA) decision, pursuant to
its review under Article 66(c), Uniform Code of Military Jus-
tice (UCMJ), 

10 U.S.C. § 866

 (2012), not to approve certain
specifications because they constituted an unreasonable
multiplication of charges, despite Appellee’s pretrial agree-
ment (PTA), which waived all waivable motions. United
States v. Chin, No. ACM 38452 (recon), 

2015 CCA LEXIS 241

, 

2015 WL 4039595

 (A.F. Ct. Crim. App. June 12, 2015)
(unpublished). Because we conclude that a case is subject to
a complete appellate review by a Court of Criminal Appeals
under Article 66(c), UCMJ, unless, after trial and sentenc-
ing, an accused waives appellate review altogether pursuant
to Article 61, UCMJ, 

10 U.S.C. § 861

 (2012), we affirm the
decision of the AFCCA.
                      I. BACKGROUND

    The Government and Appellee signed a PTA that includ-
ed a “waive all waivable motions” provision and limited Ap-
pellee’s punishment to a maximum of twenty-four months of
confinement and a bad-conduct discharge. At trial, the mili-
tary judge specifically addressed the “waive all waivable mo-
tions” provision. Defense counsel stated that they “would
have raised a multiplicity motion.” After determining that
“multiplicity motions” were waived as part of the PTA, the
military judge approved the PTA and convicted Appellee,
consistent with his pleas, of six specifications of failure to
obey a lawful general order or regulation, seven specifica-
tions of dereliction of duty for failing to store and protect
classified information and unauthorized disclosure of that
information, one specification of larceny of military property,
and five specifications of unauthorized retention and failure
to deliver documents relating to the national defense in vio-
lation of Articles 92, 121, 134, UCMJ, 

10 U.S.C. §§ 892

, 921,
934 (2012). Appellee was sentenced to twelve months of con-
finement, forfeiture of all pay and allowances, reduction to
pay grade E-2, and a bad-conduct discharge. The convening
authority approved only ten months of confinement but oth-
erwise approved the sentence as adjudged.
   On April 7, 2015, the AFCCA dismissed and merged var-
ious charges and specifications, citing the doctrine of unrea-
sonable multiplication of charges. United States v. Chin, No.




                              2
               United States v. Chin, 15-0749/AF
                     Opinion of the Court

ACM 38452, 

2015 CCA LEXIS 140

, at*2, 

2015 WL 2064411

,
at *1 (A.F. Ct. Crim. App. Apr. 7, 2015) (unpublished). The
AFCCA reassessed Appellee’s sentence and approved the
same sentence as originally adjudged by the convening au-
thority. 

2015 CCA LEXIS 140

, at *33, 

2015 WL 2064411

, at
*11. After granting the Government’s motion for reconsider-
ation, on June 12, 2015, the AFCCA reaffirmed its decision.
Chin, 

2015 CCA LEXIS 241

, at *7 n.2, *10–11, 

2015 WL 4039595

, at *2 n.2, *3. The AFCCA noted that while,
“[o]rdinarily, an affirmative waiver of a claim of multiplicity
and unreasonable multiplication of charges would end [the]
inquiry,” it declined to apply waiver in this case because
“Article 66(c) empowers the service courts to consider claims
of multiplicity or unreasonable multiplication of charges
even when those claims have been waived.” Chin, 

2015 CCA LEXIS 241

, at *9–11, 

2015 WL 4039595

, at *3. Furthermore,
the AFCCA observed that “[t]his deviation from our past
treatment and application of waiver is warranted by the
facts of this case .... in that … the charging scheme grossly
exaggerates the appellant’s criminality,” 

2015 CCA LEXIS 241

, at *12, 

2015 WL 4039595

, at *4. The AFCCA then dis-
missed three specifications as being an unreasonable multi-
plication of charges for findings and merged five specifica-
tions for sentencing. 

2015 CCA LEXIS 241

, at *19–31, *35,

2015 WL 4039595

, at *6–9, *11. In its reassessment of Ap-
pellee’s sentence, the AFCCA approved the adjudged sen-
tence. 

2015 CCA LEXIS 241

, at *31–35, 

2015 WL 4039595

,
at *10–11.
                       II. DISCUSSION
                              A.

   The scope and meaning of both Article 66(c), UCMJ, and
Article 61, UCMJ, are matters of statutory interpretation,
questions of law reviewed de novo. United States v. Schloff,

74 M.J. 312, 313

 (C.A.A.F. 2015), cert. denied, 

136 S. Ct. 915

(2016).
   We agree that as a general matter “[w]hen an error is
waived, … the result is that there is no error at all and an
appellate court is without authority to reverse a conviction
on that basis.” United States v. Weathers, 

186 F.3d 948, 955

(D.C. Cir. 1999); see also United States v. Olano, 

507 U.S. 725

, 732–34 (1993). This rule is consistent with the “limited




                              3
               United States v. Chin, 15-0749/AF
                     Opinion of the Court

power” language of Federal Rule of Criminal Procedure
52(b). Olano, 507 U.S. at 731–33. In line with this precedent
and this Court’s more circumscribed statutory authority, we
have held that an appellant may not raise on appeal, and
that we cannot rectify, an error that was waived at trial.
United States v. Campos, 

67 M.J. 330

, 332–33 (C.A.A.F.
2009); United States v. Gladue, 

67 M.J. 311, 313

 (C.A.A.F.
2009).
    However, this “ordinary” rule does not apply to a CCA’s
wholly dissimilar statutory review. Article 66(c), UCMJ, re-
quires that the CCAs conduct a plenary review and that
they “affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as [they] find[] correct
in law and fact and determine[], on the basis of the entire
record, should be approved.” Article 66(c), UCMJ; see also
United States v. Nerad, 

69 M.J. 138

, 141–44 (C.A.A.F. 2010);
United States v. Quiroz, 

55 M.J. 334, 338

 (C.A.A.F. 2001);
United States v. Claxton, 

32 M.J. 159, 162

 (C.M.A. 1991);
United States v. Cole, 

31 M.J. 270, 272

 (C.M.A. 1990); Unit-
ed States v. Evans, 

28 M.J. 74

, 75–76 (C.M.A. 1989); United
States v. Britton, 

26 M.J. 24

, 26–27 (C.M.A. 1988). A com-
plete Article 66, UCMJ, review is a “substantial right” of an
accused, United States v. Jenkins, 

60 M.J. 27, 30

 (C.A.A.F.
2004), and a CCA may not rely on only selected portions of a
record or allegations of error alone. See United States v. Ad-
ams, 

59 M.J. 367, 372

 (C.A.A.F. 2004); see also United States
v. Roach, 

66 M.J. 410, 412

 (C.A.A.F. 2008) (“[T]he scope of
review by the [CCA] differs in significant respect from direct
review in the civilian federal appellate courts.”).
    “If the sentence approved by the convening authority in-
cludes capital punishment, a punitive discharge, or confine-
ment for one year or more, [Article 66(c), UCMJ,] provides
for mandatory review,” and the CCAs have an “affirmative
obligation to ensure that the findings and sentence in each
such case are ‘correct in law and fact … and should be ap-
proved.’” United States v. Miller, 

62 M.J. 471, 472

 (C.A.A.F.
2006) (alteration in original) (citation omitted). There is no
“waiver” exception in the statute, nor do we think reading
one in makes sense given the existence of Article 61, UCMJ,
and its associated rules.




                              4
               United States v. Chin, 15-0749/AF
                     Opinion of the Court

     While an accused is prevented from raising an issue by a
“waive all waivable motions” provision, an accused has no
authority to waive a CCA’s statutory mandate unless,
through Article 61, UCMJ, procedures, the accused waives
the right to appellate review altogether — and that election
cannot be made until after the trial and sentencing. See also
Rules for Courts-Martial (R.C.M.) 1110(a); R.C.M. 1110(f)(1).
Because Article 61, UCMJ, is the exclusive means by which
an accused can waive the right to a complete appellate re-
view, Miller, 

62 M.J. at 472

, that right cannot be waived in a
PTA, even when a “waive all waivable motions” provision is
given full effect. See R.C.M. 705(c)(1)(B) (proscribing the en-
forcement of terms in a PTA that would deprive an accused
of certain rights, including “the complete and effective exer-
cise of post-trial and appellate rights”); see also United
States v. Smith, 

44 M.J. 387, 391

 (C.A.A.F. 1996) (noting
that “[t]he language that Congress chose to permit [waiver
of the right to appellate review] is both precise and particu-
lar”). It would defy logic to conclude that while an accused
may not waive the right to complete appellate review as part
of a PTA, she can nonetheless sidestep Article 61, UCMJ,
and the temporal protections built into it by virtue of a
“waive all waivable motions” provision in a PTA, permitting
... an accused to, in effect, waive the right to complete appel-
late review as part of a PTA.
    We decline to construe Article 66(c), UCMJ, in such a
fashion that the particular and protective waiver procedure
provided by Article 61, UCMJ, and its accompanying rules
can be circumvented in this way, which would be at odds
with the overall structure of the UCMJ. Either a case is sub-
ject to a complete appellate review under Article 66(c),
UCMJ, or it is not because such review was waived — after
trial and sentencing — under Article 61, UCMJ. See Miller,

62 M.J. at 472

. If an appellant elects to proceed with Article
66, UCMJ, review, as in this case, then the CCA is com-
manded by statute to review the entire record and approve
only that which “should be approved.” A fortiori, the CCAs
are required to assess the entire record to determine wheth-
er to leave an accused’s waiver intact, or to correct the error.
Cf. United States v. Tardif, 

57 M.J. 219, 223

 (C.A.A.F. 2002).
   Contrary to the Government’s claims of Armageddon,
there is nothing new about today’s decision, and it does not



                               5
               United States v. Chin, 15-0749/AF
                     Opinion of the Court

mean that a “waive all waivable motions” provision or un-
conditional guilty plea is without meaning or effect. Waiver
at the trial level continues to preclude an appellant from
raising the issue before either the CCA or this Court. See
Gladue, 67 M.J. at 313–14. And a “waive all waivable mo-
tions” provision or unconditional guilty plea continues to
serve as a factor for a CCA to weigh in determining whether
to nonetheless disapprove a finding or sentence. Article 66,
UCMJ, is neither limitless nor standardless, Nerad, 69 M.J.
at 145–46, and CCAs are presumed to know the law and fol-
low it, see United States v. Schweitzer, 

68 M.J. 133, 139

(C.A.A.F. 2009).
                              B.

    In this case, the CCA provided a detailed explanation for
disapproving and merging offenses despite Appellee’s waiv-
er, holding that “[t]his deviation from our past treatment
and application of waiver is warranted by the facts of this
case .... in that … the charging scheme grossly exaggerates
the appellant’s criminality.” Chin, 

2015 CCA LEXIS 241

, at
*10–12, 

2015 WL 4039595

, at *3–4. The CCA disapproved
specifications based on a legal standard, citing the fact that
“the unreasonable multiplication of charges [was] so plainly
presented in this case.” 

2015 CCA LEXIS 241

, at *12, 

2015 WL 4039595

, at *4. That rationale is based on the legal
standard this Court gave them, see Nerad, 

69 M.J. at 147

,
and the CCA’s action was well within the limitations of its
Article 66(c), UCMJ, review. See United States v. Anderson,

68 M.J. 378, 386

 (C.A.A.F. 2010).
                       III. JUDGMENT

   The certified question is answered in the negative, and
the decision of the United States Air Force Court of Criminal
Appeals is affirmed.




                              6
             United States v. Chin, No. 15-0749/AF


   Judge STUCKY, with whom Judge OHLSON joins, dis-
senting.

    A valid waiver of an issue at trial leaves no error to cor-
rect on appeal. United States v. Campos, 

67 M.J. 330, 332

(C.A.A.F. 2009); United States v. Gladue, 

67 M.J. 311, 313

(C.A.A.F. 2009) (holding that a valid trial waiver extin-
guishes the error). Nevertheless, the majority concludes, in
effect, that a waiver instead places an issue in a kind of
deathlike suspended animation, which the Court of Criminal
Appeals (CCA) has the unfettered discretion to reanimate.
See United States v. Chin, __ M.J. __, __ (4) (C.A.A.F. 2016).
I can find no support in the UCMJ for such an assertion.
Therefore, I respectfully dissent.
    To reach its conclusion, the majority opinion relies on
faulty readings of Articles 61 and 66, Uniform Code of Mili-
tary Justice (UCMJ),

10 U.S.C. §§ 861

, 866 (2012). Article
66(c) provides that a CCA “may affirm only such findings of
guilty and the sentence … as it finds correct in law and fact
and determines, on the basis of the entire record, should be
approved.” The majority reads the “should be approved” lan-
guage in isolation from the rest of Article 66 and the re-
mainder of the UCMJ. By doing so, it concludes that the
CCAs have plenary review of the findings and sentence such
that they may ignore an accused’s valid waiver of an issue at
trial if they determine the issue deserves new life. Chin, __
M.J. at __ (5). I disagree.
    The CCAs were established by the Judge Advocates Gen-
eral at the direction of Congress. Article 66(a), UCMJ. They
are, therefore, Article I courts. Such courts are of limited ju-
risdiction, possessing only the powers specifically granted to
them by the Constitution and statute. See United States v.
Lopez de Victoria, 

66 M.J. 67, 69

 (C.A.A.F. 2008); see also
Clinton v. Goldsmith, 

526 U.S. 529

, 533–34 (1999); In re
United Mo. Bank of Kansas City, N.A., 

901 F.2d 1449

, 1451–
52 (8th Cir. 1990).
   “Our duty in interpreting a statute is to implement the
will of Congress, ‘so far as the meaning of the words fairly
permit[].’” United States v. Spicer, 

71 M.J. 470, 475

(C.A.A.F. 2013) (alteration in original) (quoting Sec. & Exch.
Comm’n v. Joiner, 

320 U.S. 344, 351

 (1943)). “Statutory lan-
             United States v. Chin, No. 15-0749/AF
                  Judge STUCKY, dissenting

guage cannot be construed in a vacuum. It is a fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme.” Sturgeon v. Frost, 

194 L. Ed. 2d 108, 121

 (2016) (internal quotation marks omitted)
(citation omitted); see United Sav. Ass’n of Texas v. Timbers
of Inwood Forest Associates, Ltd., 

484 U.S. 365, 371

 (1988)
(“Statutory construction … is a holistic endeavor.”).
    The “should be approved” language does not grant the
CCAs authority to disregard valid waivers and review the
whole case as if a waiver never occurred, as the majority
would have it. See S. Rep. No. 81-486, at 28 (1949), reprinted
in 1950 U.S.C.C.A.N. 2222, 2254 (The CCA “shall affirm a
finding of guilty of an offense or a lesser included offense
(see art. 59) if it determines that the finding conforms to the
weight of the evidence and there has been no error of law
which materially prejudices the substantial rights of the ac-
cused.”).
    The majority also argues that an accused’s agreement to
waive all waivable motions in effect waives appellate review
altogether, something an accused cannot do until after the
convening authority acts on his case. See Chin, __ M.J. at __,
(5) (citing Article 61, UCMJ; Rule for Courts-Martial
(R.C.M.) 705(c)(1)(B)). Article 61(a) does limit an accused’s
ability to waive his right to appellate review to within ten
days after the convening authority’s action is served on the
accused or his counsel. But a waiver of all waivable motions
is not a waiver of the right to appeal and is perfectly compat-
ible with Article 61(a) and R.C.M. 705(c)(1)(B).
    The purpose of Article 61(a) is to permit an accused who
does not want to appeal his conviction or sentence to sepa-
rate from the service promptly, without having to wait for
appellate review of his case. H.R. Rep. No. 98-549, at 15
(1983), reprinted in 1983 U.S.C.C.A.N. 2177, 2181. It does
not prohibit an accused from waiving all waivable motions
at trial; nor does it grant a CCA the authority to ignore an
accused’s valid waiver.
   R.C.M. 705(c)(1)(B) is a corollary to Article 61(a). It pro-
hibits a term or condition in a plea agreement that deprives
an accused of “the complete and effective exercise of post-




                              2
             United States v. Chin, No. 15-0749/AF
                  Judge STUCKY, dissenting

trial and appellate rights.” It does not prohibit an accused
from waiving trial issues. In fact, R.C.M. 705(c) is intended
       to ensure that certain fundamental rights of the ac-
       cused cannot be bargained away while permitting
       the accused substantial latitude to enter into terms
       or conditions as long as the accused does so freely
       and voluntarily. Subsection (1)(B) lists certain mat-
       ters which cannot be bargained away. This is be-
       cause to give up these matters would leave no sub-
       stantial means to ensure judicially that the
       accused’s plea was provident, that the accused en-
       tered the pretrial agreement voluntarily, and that
       the sentencing proceedings met acceptable stand-
       ards.
Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-40 (2012 ed.) (em-
phasis added). R.C.M. 705(c)(1)(B) and Article 61(a) are con-
gruent: an accused may not waive his post-trial rights in a
plea agreement and may only waive his right to appeal after
the convening authority acts on his case.
    Appellee’s agreement to waive all waivable motions did
not deprive him of the right to appeal. He did not bargain
away those fundamental rights R.C.M. 705(c) was meant to
protect, such as contesting the jurisdiction of the court-
martial, the voluntariness and providence of his guilty pleas,
his sentence, and the effectiveness of his counsel. That is all
the law requires.
    The majority asserts that, despite the CCA’s power of re-
animation, a “waive all waivable motions” provision or an
unconditional guilty plea still has meaning and effect be-
cause it “preclude[s] an appellant from raising the issue be-
fore either the CCA or this Court.… [and] continues to serve
as a factor for a CCA to weigh in determining whether to
nonetheless disapprove a finding or sentence.” Chin, __ M.J.
at __ (6). Beyond matters of law and application, the majori-
ty’s interpretation of Article 66(c) is logically inconsistent on
its own terms. It gives a CCA unfettered discretion to im-
pose its vision of fairness on the parties but prohibits the
appellant from suggesting what is fair or which waived is-
sues the CCA should consider. The CCA would rule by judi-
cial fiat, as in this case, without giving the parties notice




                                3
             United States v. Chin, No. 15-0749/AF
                  Judge STUCKY, dissenting

and the opportunity to argue their positions. This is a novel
conclusion that smacks of judicial paternalism of the highest
order.
    The majority implies that the decision of the lower court
in this case was more than equity because: (1) it gave a “de-
tailed explanation” as to why it deviated from its past
treatment of waiver to review the unreasonable multiplica-
tion of charges issue—“the charging scheme grossly exag-
gerates the appellant’s criminality”; and (2) “a ‘waive all
waivable motions’ provision or unconditional guilty plea con-
tinues to serve as a factor for a CCA to weigh in determining
whether to nonetheless disapprove a finding or sentence.”
Chin, __ M.J. at __ (6). But the CCA’s explanation for deviat-
ing from past practice is nothing more than a repetition of
the definition of unreasonable multiplication of charges, see
United States v. Campbell, 

71 M.J. 19, 24

 (C.A.A.F. 2012)
(“unduly exaggerate an accused’s criminality”); the same
definition that would apply if Appellee had raised the issue
at trial. The fact that the CCA may, but is not required to,
consider that an accused waived the issue at trial is no
standard at all. It is no more than the uncertain measure of
the conscience of the particular judges presiding over the
case—in other words, pure equity.
    Plea agreements play a crucial role in the military justice
system. They afford an accused the opportunity to negotiate
for reduced charges, a reduced sentence, or both by pleading
guilty and giving up some of his constitutional and statutory
rights. The finality and enforceability of the waiver is one of
the accused’s most important bargaining chips in negotiat-
ing a plea agreement. Without it, the government has less
incentive to engage in such negotiations.
    Today, the majority puts the government on notice: do
not trust that a CCA will enforce an accused’s valid waiver
of an issue at trial. The CCA may now consider such incho-
ate issues on its whim. I disagree and, therefore, dissent.




                              4