United States v. Tardif

                        UNITED STATES, Appellee

                                     V.

       Sean M. TARDIF, Food Service Specialist Third Class
                   U.S. Coast Guard, Appellant


                               No. 01-0520


                           Crim. App. No. 1141



       United States Court of Appeals for the Armed Forces

                        Argued November 27, 2001

                        Decided August 30, 2002

     GIERKE, J., delivered the opinion of the Court, in which
  EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and SULLIVAN,
              S.J., each filed a dissenting opinion.

                                  Counsel
For Appellant:    Commander Jeffrey C. Good (argued and on brief).

For Appellee: Lieutenent Daniel J. Goettle (argued and on
   brief); Commander Chris P. Reilly.

Amicus Curiae: Colonel Steven T. Salata, Lieutenant Colonel
   Denise R. Lind, Major Margaret B. Baines, and Captain Karen
   J. Borgerding (on brief) – For the U.S. Army Government
   Appellate Division.

Military Judge:    Robert Bruce


  This opinion is subject to editorial correction before final publication.
United States v. Tardif, No. 01-0520/CG


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of a 12-day

unauthorized absence and assault on a child under the age of

sixteen years (two specifications), in violation of Articles 86

and 128, Uniform Code of Military Justice (UCMJ), 

10 USC §§ 886

and 928, respectively.      The adjudged sentence provides for a

dishonorable discharge, confinement for three years, total

forfeitures, and reduction to the lowest enlisted grade.          The

convening authority reduced the confinement to 24 months but

otherwise approved the sentence.

       The Court of Criminal Appeals set aside the conviction of

unauthorized absence and reassessed and affirmed the sentence.

55 MJ 666

 (2001).     On reconsideration, the court below granted

appellant 12 days of confinement credit under United States v.
Allen, 

17 MJ 126

 (CMA 1984).        

54 MJ 954

 and 

55 MJ 670

 (2001).

      This Court granted review of the following issue:

      WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN
      CONCLUDING THAT APPELLANT HAD NOT BEEN PREJUDICED BY
      EXCESSIVE POST-TRIAL DELAY WHERE THE COURT BELOW CONCLUDED
      THAT THE DELAY WAS BOTH “UNEXPLAINED AND UNREASONABLE” AND
      “CASTS A SHADOW OF UNFAIRNESS OVER OUR MILITARY JUSTICE
      SYSTEM.”

      For the reasons set out below, we hold that a Court of

Criminal Appeals has authority under Article 66(c), UCMJ, 

10 USC § 866

(c), to grant appropriate relief for unreasonable and

unexplained post-trial delays.        We further hold that this

authority under Article 66(c) is distinct from the court’s

authority under Article 59(a), UCMJ, 

10 USC § 859

(a), to overturn

a finding or sentence “on the ground of an error of law[.]”



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United States v. Tardif, No. 01-0520/CG


Finally, we hold that the court’s authority to grant relief under

Article 66(c) does not require a predicate holding under Article

59(a) that “the error materially prejudices the substantial

rights of the accused.”       Because the court below considered

itself constrained from granting relief by Article 59(a) and did

not consider the impact of the post-trial delays in its review

under Article 66(c), we remand the case for further

consideration.

                            Appellate History
      The chronology of post-trial events in appellant’s case is

as follows:


        DATE                     ACTION                   DAYS ELAPSED
October 29, 1999          Appellant sentenced        0
October 29, 1999          Confinement deferred       0
November 5, 1999          Deferment ends             7 days
December 21, 1999         Military Judge             53 days
                          receives record of
                          trial
February 7, 2000          Record authenticated       101 days
March 23, 2000            Record served on           145 Days
                          Defense Counsel (DC)
April 10, 2000            Recommendation of          163 days
                          Staff Judge Advocate
                          (SJA) prepared1
May 15, 2000              DC responds to SJA         198 days
                          recommendation
June 9, 2000              Convening                  223 days
                          Authority’s action
Oct 2, 2000               Record forwarded to        338 days
                          Headquarters, U.S.
                          Coast Guard
November 1, 2000          Record received at         368 days
                          Coast Guard
                          Headquarters
November 17, 2000         Record referred to         384 days
                          Coast Guard Court of
                          Criminal Appeals



1
  The record does not reflect the date on which the SJA’s recommendation was
served on defense counsel.


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United States v. Tardif, No. 01-0520/CG


      The court below focused on the 115 days that elapsed after

the convening authority’s action and before the record was

forwarded to Coast Guard Headquarters.       Concluding that the delay

was “unexplained and unreasonable,” and that it “casts a shadow

of unfairness over our military justice system,” the court

nevertheless held that it was without authority to grant relief.

Citing this Court’s decisions in United States v. Hudson, 

46 MJ 226

 (1997), United States v. Jenkins, 

38 MJ 287

 (CMA 1993), and

United States v. Banks, 

7 MJ 92

 (CMA 1979), the court below
concluded that “an appellant must show that the delay, no matter

how extensive or unreasonable, prejudiced his substantial

rights.”    55 MJ at 668.     Chief Judge Baum dissented from the

decision to not grant relief for the excessive delay in

forwarding the case to the Court of Criminal Appeals.       In Chief

Judge Baum’s view, no more than 21 months of confinement should

have been approved.      Id. at 669.

      Before this Court, appellant argued that the court below

applied the wrong standard of review by focusing on Article 59(a)

instead of Article 66(c).       Appellant requested that his case be
remanded to the court below for consideration under Article

66(c), with instructions that unexplained and unreasonable post-

trial delay is an appropriate factor for that court to consider

in determining what sentence “should be approved,” regardless of

whether appellant has established legal prejudice.

      The Government asserted that appellant was not harmed by the

delay, and that it would be a windfall for appellant if he were

granted sentence relief without showing that he has been harmed.

The Government conceded, however, that if an appellant has


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United States v. Tardif, No. 01-0520/CG


suffered “harm” falling short of “prejudice” within the meaning

of Article 59(a), a Court of Criminal Appeals may grant

appropriate relief through its review of sentence appropriateness

under Article 66(c).

      The U.S. Army Government Appellate Division, as amicus

curiae, urged this Court to hold that a Court of Criminal Appeals

must be convinced that there was material prejudice to a

substantial right under Article 59(a) before it grants relief for

unreasonable post-trial delay.        It further urged this Court to

hold that, if a Court of Criminal Appeals concludes there has

been material prejudice to an appellant’s substantial rights, it

may fashion appropriate relief under Article 66(c), without

setting aside the findings and sentence.

      In contrast to the Coast Guard court’s decision in this

case, the Army Court of Criminal Appeals has held that its “broad

power to moot claims of prejudice” under Article 66(c) empowers

it to grant relief for excessive delays in the absence of a

showing of “actual prejudice.”        United States v. Collazo, 

53 MJ 721, 727

 (Army Ct.Crim.App. 2000), quoting United States v.
Wheelus, 

49 MJ 283, 288

 (1998).           The Army court noted:

            [F]undamental fairness dictates that the government
            proceed with due diligence to execute a soldier’s
            regulatory and statutory post-trial processing rights
            and to secure the convening authority’s action as
            expeditiously as possible, given the totality of the
            circumstances in that soldier’s case.

The Army court held, “That did not happen in [this] case.”        

Id.

      In so holding, the Army court in Collazo noted that the

appellant had “not demonstrated actual prejudice under Banks.”




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United States v. Tardif, No. 01-0520/CG


However, the Army court emphasized the importance of other

factors, such as

            [t]he infringement of appellant’s statutory rights
            under Articles 38 and 54, UCMJ, [

10 USC §§ 838

 and
            854,] the denial of the opportunity to review the
            record prior to authentication as required by RCM 1103,
            [Manual for Courts-Martial, United States (2000 ed.),]
            the failure to provide a complete copy of the record of
            trial (to include the allied papers) for use in
            preparation of RCM 1105 matters, and the unacceptable
            10-month delay in preparing the record of trial[.]

These circumstances, the court concluded, “warrant relief” in the

course of the court’s exercise of its responsibility under

Article 66(c) to affirm only “such part or amount of the

sentence, as it . . . determines, on the basis of the entire

record, should be approved.” 

Id.,

 quoting Article 66(c).
                                 Discussion

                            1.   Legal Context

      A brief legal history is necessary to place the granted

issue in context.     This Court has long recognized that an accused

has a right to timely review of the findings and sentence.      See

United States v. Tucker, 

9 USCMA 587, 589

, 

26 CMR 367, 369

 (1958)

(“Unexplained delays . . . [in appellate processes] should not be
tolerated by the services, and they will not be countenanced by

this Court.”).

      In United States v. Burton, 

21 USCMA 112

, 

44 CMR 166

 (1971),

the appellant asked this Court to set aside his conviction and

sentence and dismiss the charges, on the ground that he had been

denied his right to a speedy trial, in violation of Article 10,

UCMJ, 

10 USC § 810

.      This Court established a presumption of an

Article 10 violation whenever an accused is held in pretrial

confinement for more than three months.       Under the Burton rule,


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United States v. Tardif, No. 01-0520/CG


there was a “heavy burden on the Government to show diligence,

and in the absence of such a showing the charges [would] be

dismissed.”    

Id. at 118

, 

44 CMR at 172

.

      In Dunlap v. Convening Authority, 

23 USCMA 135

, 

48 CMR 751

(1974), this Court considered a petition for extraordinary relief

filed by a petitioner who remained in confinement at the United

States Disciplinary Barracks for 11 months after his conviction

was set aside, awaiting a convening authority’s decision whether

to order a rehearing or dismiss the charges.      This Court

concluded that the same considerations underlying the Burton rule
for pretrial delays should be applied to post-trial delays.

Thus, this Court held that “a presumption of a denial of speedy

disposition of the case will arise when the accused is

continuously under restraint after trial and the convening

authority does not promulgate his formal and final action within

90 days of the date of such restraint after completion of trial.”

Id. at 138

, 48 CMR at 174.       Like the Burton rule, the Dunlap rule

placed a “heavy burden on the Government to show diligence, and

in the absence of such a showing the charges [would] be
dismissed.”    Id.

      In 

Banks, supra,

 the Judge Advocate General of the Army

certified an issue challenging the correctness of the lower

court’s decision to set aside a conviction and sentence for

violation of the Dunlap rule by one day.      This Court upheld the

lower court’s decision but announced a prospective abandonment of

the Dunlap rule and a return to the rule requiring a showing of




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United States v. Tardif, No. 01-0520/CG


prejudice.    

7 MJ at 93-94

.2     Although Banks abrogated the

draconian remedy imposed by Dunlap, this Court has not wavered in

its recognition of the right to timely post-trial review.              See

United States v. Williams, 

55 MJ 302, 305

 (2001) (“Appellant has

a right to a speedy post-trial review of his case.”).

      In Hudson, 

46 MJ at 227

, Jenkins, 

38 MJ at 288

, and

Williams, supra,

 this Court again considered requests to dismiss

the charges for delays in post-trial processing.            In all these

cases, this Court declined to dismiss the charges, either citing

or relying on Article 59(a).

      In Banks, Hudson, Jenkins, and Williams, this Court was
asked to exercise its own authority under Article 67, UCMJ, 

10 USC § 867

, and to dismiss the charges for unreasonable and

unexplained delays in post-trial processing.           None of these

decisions involved the authority of the Courts of Criminal

Appeals and their predecessors to grant relief under Article

66(c), and none of these decisions involved the question whether

the Courts of Criminal Appeals and their predecessors had

authority to grant relief short of dismissal of the charges.                The
pleadings in this case present two issues:

      (1) Whether a Court of Criminal Appeals has authority under
      Article 66(c) to grant relief for excessive post-trial
      delay, whether or not the delay has “materially prejudiced
      [the appellant’s] substantial rights”; and

      (2) Whether a Court of Criminal Appeals has authority to
      grant relief short of dismissal of the charges if it
      concludes that there has been excessive post-trial delay.




2
  In United States v. Kossman, 

38 MJ 258, 262

 (CMA 1993), this Court also
abrogated the Burton rule and returned to a “reasonable diligence” test.


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United States v. Tardif, No. 01-0520/CG


These issues involve interpretation of Articles 59(a) and 66(c),

and thus they present issues of law, which we review de novo.

             2.   Authority of Courts of Criminal Appeals

      Unlike our Court’s limited authority to review sentences

under Article 67, a Court of Criminal Appeals has broad authority

under Article 66(c) to review and modify sentences.     Article

66(c) provides in pertinent part as follows:

            [The Court of Criminal Appeals] may affirm only such
            findings of guilty and the sentence or such part or
            amount of the sentence, as it finds correct in law and
            fact and determines, on the basis of the entire record,
            should be approved.

The legislative history of Article 66 reflects congressional

intent to vest broad power in the Courts of Criminal Appeals.

The legislative history also reflects a congressional distinction

between review of the lawfulness of a sentence and its

appropriateness.     See S. Rep. No. 98-486, at 28 (1949) (“The
Board may set aside, on the basis of the record, any part of a

sentence, either because it is illegal or because it is

inappropriate.”).     Professor Morgan, chair of the drafting

committee for the UCMJ, testified as follows about the power of
the Boards of Review, the predecessors of the Courts of Criminal

Appeals:

            [T]he board of review, now, has very extensive powers.
            It may review law, facts, and practically, sentences;
            because the provisions stipulate that the board of
            review shall affirm only so much of the sentence as it
            finds to be justified by the whole record. It gives
            the board of review . . . the power to review facts,
            law and sentence . . . .

Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the Senate

Comm. on Armed Services, 81st Cong., at 42 (1949).




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United States v. Tardif, No. 01-0520/CG


      In Jackson v. Taylor, 

353 U.S. 569, 576-77

 (1957), the

Supreme Court reviewed the legislative history of Article 66, and

it concluded that Congress intended the Boards of Review to

affirm only so much of the sentence as they found to be

“justified by the whole record,” and to set aside all or part of

a sentence, “either because it is illegal or because it is

inappropriate.”     Our Court likewise has concluded that the

predecessors of the Courts of Criminal Appeals had the power and

responsibility to, “in the interests of justice, substantially

lessen the rigor of a legal sentence.”        United States v. Lanford,

6 USCMA 371, 378

, 

20 CMR 87, 94

 (1955).

      Our Court has consistently recognized the broad power of the

Courts of Criminal Appeals to protect an accused.        See United

States v. Parker, 

36 MJ 269, 271

 (CMA 1993).        We have

consistently recognized that the charter of Courts of Criminal

Appeals on sentence review is to “do justice.”        United States v.

Claxton, 

32 MJ 159, 162

 (CMA 1991); United States v. Healy, 

26 MJ 394, 395-96

 (CMA 1988).       Finally, we have consistently recognized

the “broad power” of a Court of Criminal Appeals “to moot claims
of prejudice by ‘affirm[ing] only such findings of guilty and the

sentence or such part or amount of the sentence, as it finds

correct in law and fact and determines, on the basis of the

entire record, should be approved.”        Wheelus, 

49 MJ at 288

,

quoting Art. 66(c); see also United States v. Higbie, 

12 USCMA 298

, 

30 CMR 298

 (1961) (recognizing power of Board of Review to

reduce sentence in order to moot issue whether convening

authority considered a dismissed charge and specification in his

review of the adjudged sentence).


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United States v. Tardif, No. 01-0520/CG


      However, the power of the Courts of Criminal Appeals is not

without limits.     Article 59(a) provides: “A finding or sentence

of court-martial may not be held incorrect on the ground of an

error of law unless the error materially prejudices the

substantial rights of the accused.”          Article 59(a) was intended

by Congress to preclude reversals for minor technical errors.

See United States v. Powell, 

49 MJ 460, 462

 (1998).           In

accordance with Article 67, this Court reviews the sentencing

decisions of the Courts of Criminal Appeals for “obvious

miscarriages of justice or abuses of discretion.”          See United
States v. Jones, 

39 MJ 315, 317

 (CMA 1994).

      Based on the legislative and judicial history of Articles

59(a) and 66(c), we conclude that the power and duty of a Court

of Criminal Appeals to review sentence appropriateness under

Article 66(c) is separate and distinct from its power and duty to

review a sentence for legality under Article 59(a).          Considered

together, Articles 59(a) and 66(c) “bracket” the authority of a

Court of Criminal Appeals.       Article 59(a) constrains the

authority to reverse “on the ground of an error of law.”           Article
66(c) is a broader, three-pronged constraint on the court’s

authority to affirm.      Before it may affirm, the court must be

satisfied that the findings and sentence are (1) “correct in

law,” and (2) “correct in fact.”           Even if these first two prongs

are satisfied, the court may affirm only so much of the findings

and sentence as it “determines, on the basis of the entire

record, should be approved.”        See 

Powell, supra at 464-65

.     The

first prong pertains to errors of law and, as such, it also

implicates Article 59(a). The second and third prongs do not


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United States v. Tardif, No. 01-0520/CG


involve errors of law and, thus, do not implicate Article 59(a).

Based on this statutory analysis, we agree with the Army court’s

conclusion in Collazo that a Court of Criminal Appeals has

authority under Article 66(c) to grant relief for excessive post-

trial delay without a showing of “actual prejudice” within the

meaning of Article 59(a), if it deems relief appropriate under

the circumstances.      

53 MJ at 727

.

      Thus, we hold that, in addition to its determination that no

legal error occurred within the meaning of Article 59(a), the

court below was required to determine what findings and sentence

“should be approved,” based on all the facts and circumstances

reflected in the record, including the unexplained and

unreasonable post-trial delay.        Accordingly, we conclude that a

remand is necessary so that the court below can exercise its

broad authority under Article 66(c) to determine whether relief

is warranted and, if so, what relief should be granted.

             3.   Remedies for Excessive Post-Trial Delay
      The argument of amicus curiae raises the additional issue

whether a Court of Criminal Appeals has authority to grant relief
short of dismissal of the charges if it finds excessive post-

trial delay.      This argument reflects the longstanding concern of

our Court and the Courts of Criminal Appeals about the draconian

remedy required by Dunlap and its progeny for excessive post-

trial delay.      See Hudson, 

46 MJ at 227

 (“[W]e are loath to

declare that valid trial proceedings are invalid solely because

of delays in the criminal process after the trial.”); United

States v. Clevidence, 

14 MJ 17, 21

 (CMA 1982) (Cook, J.,

dissenting) (dismissing charges is “burning the barn to kill the


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United States v. Tardif, No. 01-0520/CG


rats”); Banks, 

7 MJ at 93

 (“The certified question expresses the

frustration of the services over the inflexibility of the Dunlap

rule.”); Dunlap, 23 USCMA at 141, 48 CMR at 757 (Duncan, C.J.,

dissenting) (“What the Court does today is provide a means where

a person found guilty beyond a reasonable doubt in an error-free

hearing may escape any sanction.”); see also Department of the

Army Pamphlet 27-50-336, The Army Lawyer, Criminal Law Note:

United States v. Collazo: The Army Court of Criminal Appeals Puts

Steel on the Target of Post-Trial Delay, at 37-38 (November 2000)
(Army Court of Criminal Appeals “left with the options of finding

prejudice and letting a rapist go free, or finding no prejudice

and ratifying the sloppy administration of justice.”).

      Before this Court decided Dunlap, denial of the right to

speedy trial resulted in dismissal of the charges only if

reversible trial errors occurred and it was impossible to cure

those errors at a rehearing because of the excessive post-trial

delay.   See United States v. Timmons, 

22 USCMA 226

, 227, 

46 CMR 226

, 227 (1973), and cases cited therein.   In Timmons, this Court

noted that the court below had purged the effect of a trial error
by modifying the findings, making dismissal of the charges

unwarranted.    In United States v. Gray, 

22 USCMA 443

, 445, 

47 CMR 484

, 486 (1973), this Court repeated this principle:

            [B]efore ordering a dismissal of the charges because of
            post-trial delay there must be some error in the
            proceedings which requires that a rehearing be held and
            that because of the delay appellant would be either
            prejudiced in the presentation of his case at a
            rehearing or that no useful purpose would otherwise be
            served by continuing the proceedings.

      Although Dunlap is regarded as a post-trial delay case, the

delay in that case actually involved the decision whether to


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United States v. Tardif, No. 01-0520/CG


order a rehearing.      See 23 USCMA at 136, 48 CMR at 752.   Assuming

without deciding that Article 10 applies only to proceedings

through trial, this Court stated, “[T]he failure of the Uniform

Code or the Manual for Courts-Martial to condemn directly

unreasonable delay by the convening authority in acting on the

record of trial does not mean that relief against such delay is

unobtainable.”     This Court then decided that it was “appropriate”

that the presumption of prejudice adopted for pretrial delays in

Burton be applied to post-trial delays, along with the sanction
of dismissing the charges whenever the presumption of prejudice

was not overcome.     Id. at 138, 48 CMR at 754.

      In United States v. Becker, 

53 MJ 229, 232

 (2000), this

Court provided the following guidance concerning remedies for

“speedy trial” violations in the context of sentence rehearings:

“[T]he remedy should be tailored to the harm suffered, such as an

appropriate sentence credit or, in a case where the delay has

interfered with the defense’s ability to receive a fair hearing,

a sentence to no punishment at all.”

      We conclude that the Dunlap “all-or-nothing” remedy for
post-trial delays was laid to rest in Banks.       We further conclude

that appellate courts are not limited to either tolerating the

intolerable or giving an appellant a windfall.      The Courts of

Criminal Appeals have authority under Article 66(c) to apply the

Timmons approach, recently repeated in Becker, to post-trial

delays, and to tailor an appropriate remedy, if any is warranted,

to the circumstances of the case.

      Finally, we note that counsel at the trial level are

particularly well-situated to protect the interests of their


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United States v. Tardif, No. 01-0520/CG


clients by addressing post-trial delay issues before action by

the convening authority.       Trial counsel can ensure that the

record contains an explanation for what otherwise might appear to

be an unreasonable delay.       Defense counsel can protect the

interests of the accused through complaints to the military judge

before authentication or to the convening authority after

authentication and before action.          After the convening

authority’s action, extraordinary writs may be appropriate in

some circumstances.      Appellate relief under Article 66(c) should

be viewed as the last recourse to vindicate, where appropriate,

an appellant’s right to timely post-trial processing and

appellate review.

                                  Decision
      The decision of the United States Coast Guard Court of

Criminal Appeals is set aside.        The record of trial is returned

to the General Counsel of the Department of Transportation for

remand to the Court of Criminal Appeals for reconsideration in

light of this opinion.      Thereafter, Article 67 will apply.




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United States v. Tardif, No. 01-0520/CG


      CRAWFORD, Chief Judge (dissenting):

      The majority interprets Articles 66(c) and 59(a) in a

manner that is contrary to the principles of statutory

construction and legislative intent, as well as inconsistent

with 50 years of established practice and case law.            In so

doing, the majority offers an incomplete recitation of the

legislative history of Articles 66(c) and 59(a) and ignores the

practical effects of its decision.         The majority’s misreading of

Article 59 should not be further exacerbated.           Unless there has

been a substantial violation of an appellant’s rights, the

Courts of Criminal Appeals may not use their supervisory

authority to grant further relief to the appellant.            United

States v. Hasting, 

461 U.S. 499, 505

 (1983).           Instead, this

Court should encourage corrective action by those responsible

for post-trial delays.      

Id.

 at 506 n.5.      Because the majority is

engaging in broad judicial rulemaking1 by amending the Code to

expand Article 66(c) and contract Article 59(a), and thereby

essentially creating a power of equity in the court below, I

must respectfully dissent.

      The objectives of the majority and the Army Court of

Criminal Appeals in United States v. Collazo, 

53 MJ 721

(Army Ct. Crim. App. 2000), are well intentioned but lack a



1
  See United v. Key, No. 01-0646, ___ MJ ___ n.* (2002)(Crawford, C.J.,
concurring in the result).
United States v. Tardif, No. 01-0520/CG


doctrinal basis.   I wholeheartedly endorse the goal of

preventing unexplained or unreasonable post-trial delays, but

believe there is a better means of achieving this end without

violating the doctrine of separation of powers and principles

established for judicial bodies.

     The starting point for interpreting a statute is, of

course, the plain meaning of that statute.    In addition, there

are a number of factors that provide a framework for engaging in

statutory interpretation.   These include the contemporaneous

history of the statute; the contemporaneous interpretation of

the statute; and subsequent legislative action or inaction

regarding the statute.   These factors provide a background of

the existing customs, practices, and rights and obligations

against which to read the statute.     Applying these principles of

statutory interpretation to Articles 66(c) and 59(a) yields a

different result from that reached by the majority.

     Article 66(c) provides as follows:

          In a case referred to it, the Court of Criminal
          Appeals may act only with respect to the findings
          and sentence as approved by the convening
          authority. It may affirm only such findings of
          guilty and the sentence or such part or amount of
          the sentence, as it finds correct in law and fact
          and determines, on the basis of the entire record,
          should be approved. In considering the record, it
          may weigh the evidence, judge the credibility of
          witnesses, and determine controverted questions of
          fact, recognizing that the trial court saw and
          heard the witnesses.



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United States v. Tardif, No. 01-0520/CG


Additionally, Article 59(a) provides:

             A finding or sentence of court-martial may not be
             held incorrect on the ground of an error of law
             unless the error materially prejudices the
             substantial rights of the accused.

     Contemporaneous History.      Article 66(c) provides that the

Court of Criminal Appeals “may affirm only ... the sentence or

such part or amount of the sentence, as it finds correct in law

and fact and determines, on the basis of the entire record,

should be approved.”

     By establishing the intermediate appellate courts, Congress

intended to eliminate command influence, such as a commander

sending an acquittal back to a court-martial for

reconsideration.      Hearings on H.R. 2498 Before a Subcomm. of the

House Comm. on Armed Services, 81st Cong., at 608 (1949)(the

“Hearings”).    The courts of review could examine not only

questions of law, but questions of fact, to preclude command

influence.    

Id.

   Additionally, Article 66 was intended to grant

the Courts of Criminal Appeals discretionary power to modify

sentences.     These courts would ensure that there was a uniform

Code because they would examine courts-martial sentences from

throughout the world.      The Hearings emphasized, “It is

contemplated that this power [under Articles 66 and 59] will be

exercised to establish uniformity of sentences throughout the

armed forces.”      Id. at 1187.



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United States v. Tardif, No. 01-0520/CG


     This is reinforced by Professor Morgan’s commentary to

Article 66, which provides:

          The Board of Review shall affirm a finding of
          guilty of an offense or a lesser included offense
          (see Article 59) if it determines that the
          finding conforms to the weight of the evidence
          and that there has been no error of law which
          materially prejudices the substantial rights of
          the accused. See Article 59, Commentary. The
          Board may set aside, on the basis of the record,
          any part of a sentence, either because it is
          illegal or because it is inappropriate. It is
          contemplated that this power will be exercised to
          establish uniformity of sentences throughout the
          armed forces. See Article 67(g).

Uniform Code of Military Justice:    Text, References and

Commentary based on the Report of the Committee on a Uniform

Code of Military Justice to the Secretary of Defense, at 94

(1950).

     The plain meaning of Article 66 is that the Court of

Criminal Appeals may “affirm only ... findings and sentences”

based on the “entire record.”   We have interpreted this statute

to allow Courts of Criminal Appeals, based on the entire record

of trial, to modify or dismiss charges based on a lack of

factual sufficiency, as well as reassess sentences found to be

inappropriate.   But we have not allowed these courts to go

outside the record, for example, by considering two nonjudicial

punishments that were inadmissible at trial.    See United States

v. Redhouse, 

53 MJ 246

 (2000)(summary disposition).    Nor have we

allowed the Courts of Criminal Appeals to grant suspension of


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United States v. Tardif, No. 01-0520/CG


the punishment.   See, e.g., United States v. Darville, 

5 MJ 1

(CMA 1978).

     Additionally, the plain meaning of the statute in the

context of its enactment in 1950 does not support the majority’s

position.   When Congress wanted to grant discretionary power

unrelated to Article 59, it knew how to do so.   See Art.

60(c)(2), UCMJ, 

10 USC § 860

(c)(2)(in acting on the findings or

sentence, “convening authority ..., in his [or her] sole

discretion, may approve, disapprove, commute, or suspend the

sentence in whole or in part”); see also Art. 60(c)(3)(A)

(convening authority may act “in his [or her] sole discretion”

in dismissing the charges or specifications).

     Authority was not granted to the Courts of Criminal Appeals

to grant windfalls unrelated to Article 59 or act in their “sole

discretion.”   While the authority of the courts below has been

commented on by referring to them as the “proverbial 800-pound

gorilla,” they may not act on their own whim.    United States v.

Parker, 

36 MJ 269, 273

 (CMA 1993)(Wiss, J., concurring).     We

have not granted these courts power under Article 66(c) to

resolve post-trial claims of ineffective assistance of counsel

by making findings of fact based on conflicting affidavits from

the parties.   See, e.g., United States v. Ginn, 

47 MJ 236

(1997).   Based upon the plain language of the statute and the

legislative history, it is improbable that if Congress was


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United States v. Tardif, No. 01-0520/CG


asked, it would grant the authority to the Courts of Criminal

Appeals to reduce sentences because of post-trial delay, even

though an appellant was not prejudiced.

     Contemporaneous Interpretation.   In interpreting Articles

66(c) and 59(a), we should examine their construction for the

last 50 years by this Court and intermediate service appellate

courts.   None has reached the conclusion reached by the Army

court in Collazo.   Additionally, there has been no change to the

statutes that might precipitate a statutory reinterpretation.

The fact that this remedy has not been previously proposed is

good evidence that such was not the intent of Congress.

     Legislative Action or Inaction.   If Congress wanted to

establish the remedy which the majority sanctions, it would have

done so at the time of the UCMJ’s enactment, or at any

subsequent time that it became dissatisfied with decisions from

the courts concerning post-trial delays.   Numerous changes to

the UCMJ have been enacted by Congress over the last 50 years,

many in response to various judicial decisions.   No changes have

been forthcoming regarding the impact of post-trial delays.     The

majority’s interpretation simply does not relate to the

statutory objectives sought by Congress.

     Practical Effects.   There are practical reasons for not

giving this authority to the lower courts.   Contrary to the

majority’s assertion, final authority will not rest with the


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United States v. Tardif, No. 01-0520/CG


Courts of Criminal Appeals.    Final review by this Court will be

required to determine whether the lower courts abused their

discretion.   Neither the courts below nor this Court should be

placed in the position of determining what constitutes a request

for a delay, what circumstances justify delay, what constitutes

extraordinary circumstances, and so forth.   We do not have the

flexibility or ability to gather facts that the President and

his advisors have in exercising their rulemaking authority.

Article 36, UCMJ, 

10 USC § 836

, is a clear grant of authority to

the President to formulate these procedural rules.   We should

not be flirting with amending a statute or the Manual.    That

role should be left for Congress and the Executive Branch.

     We would be shortsighted in not allowing the President and

the services to exercise their rulemaking authority within

established processes.   I agree with Senior Judge Sullivan that

neither this Court nor the courts below ought to exercise

supervisory authority when the error is harmless.    Rulemaking by

the Executive Branch or Congress allows for flexibility and

advance planning and avoids the distortion that takes place

through judicial rulemaking.   Once the rules are enacted, they

will be subject to judicial review.   We will ensure that

servicemembers are not prejudiced by post-trial delays.

    Twice previously we have sought to interject ourselves into

issues of delay through injudicious rulemaking.   See United


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United States v. Tardif, No. 01-0520/CG


States v. Burton, 

21 USCMA 112

, 

44 CMR 166

 (1971); Dunlap v.

Convening Authority, 

23 USCMA 135

, 

48 CMR 751

 (1974).             As to

both Burton and Dunlap, we recognized the error and overruled

our prior cases.     See United States v. Kossman, 

38 MJ 258

 (CMA

1993); United States v. Banks, 

7 MJ 92

 (CMA 1979).2            These later

decisions recognize that rules regarding delays should be made

by the Executive Branch or Congress, not by this Court or the

intermediate appellate courts.

      The failure to take action in this case will not frustrate

the legislative purpose behind Article 66.          In fact, leaving

action to the Congress or the President will ensure that the

majority achieves its objective.          This allows rights and

obligations to be protected through the rulemaking process

rather than through judicial efforts to amend the Code.

      Certainly there should be no unreasonable and unexplained

delays.   But these rules will be more appropriately adopted by

the Legislative or Executive Branch, which are in the best

position to decide when and how to chastise staff judge

advocates and others in the Executive Branch.           Judges should be

required immediately to notify the service Clerk of Court or

some central authority when a sentence that includes a punitive

discharge and one year or more confinement has been imposed.


2
  See also United States v. Williams, 

55 MJ 302

 (2001)(no relief granted
because there was no showing of prejudice since there was no representation
to entitlement of pay beyond expiration of term of service).


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United States v. Tardif, No. 01-0520/CG


See United States v. Henry, 

40 MJ 722, 725

 (NMCMR 1994).     There

can then be an automatic triggering mechanism at 120 days or

some other point in time in order to determine whether the

convening authority has taken action.    The fitness evaluation

standards need to be changed:   when there are substantial

delays, an evaluation of the responsible person or persons

should reflect such performance.

     If we look to the Executive and Legislative Branches to

take action, we will ensure continuity and relative stability in

handling delays in post-trial actions.    The difficulties

associated with court-crafted rules can be seen in the hundreds

of published cases and more than a thousand unpublished cases

that were decided subsequent to Burton.

     For all of the foregoing reasons, I would affirm the court

below.




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United States v. Tardif, No. 01-0520/CG

    SULLIVAN, Senior Judge (dissenting):

    I see no reason to reverse and remand this case.     I would

affirm.    There was no prejudice to appellant from the post-trial

delay in this case, and no appellate relief is otherwise required

by law.    See Article 59(a), UCMJ.   The majority today creates a

new equity-type supervisory power for the Courts of Criminal

Appeals.    This is judicial activism, and I dissent.



    This Court granted review on the following question of law:



            WHETHER THE COAST GUARD COURT OF CRIMINAL
            APPEALS ERRED IN CONCLUDING THAT APPELLANT
            HAD NOT BEEN PREJUDICED BY EXCESSIVE POST
            TRIAL DELAY WHERE THE COURT BELOW
            CONCLUDED THAT THE DELAY WAS BOTH
            “UNEXPLAINED AND UNREASONABLE” AND “CASTS
            A SHADOW OF UNFAIRNESS OVER OUR MILITARY
            JUSTICE SYSTEM.”


    We review a Court of Criminal Appeals decision on prejudice

resulting from post-trial delay on a de novo basis.      See United

States v. Banks, 

7 MJ 92

 (CMA 1979).    It is key to this case that

both the Government and appellant concede that appellant has not

suffered material prejudice from the post-trial delay in this

case so as to warrant reversal of his conviction.    See United

States v. Hudson, 

46 MJ 226

 (1997); United States v. Jenkins, 

38 MJ 287

 (CMA 1983).    The court below and I both agree that the

post-trial delay in this case did not legally prejudice appellant

as required by our case law for appellate relief.    See United

States v. Gray, 

22 USCMA 443

, 445, 

47 CMR 484

, 486 (1973);
United States v. Tardif, 01-0520/CG


United States v. Timmons, 

22 USCMA 226

, 227, 

46 CMR 226

, 227

(1973).



    Appellant, however, argues that this Court’s decisions

requiring a showing of legal prejudice for reversal do not bind

the Court of Criminal Appeals or preclude it from granting a

lesser form of sentence relief (confinement reduction) based on a

simple showing of unreasonable post-trial delay.   But see United

States v. Timmons, supra (holding “post-trial delay, standing

alone without prejudicial error in the trial proceedings, will

not require relief on otherwise proper findings and sentences”).

He cites the “unique” sentence approval powers of the lower

appellate court under Article 66(c), UCMJ, as legal authority for

such action.   See also United States v. Collazo, 

53 MJ 721

 (Army

Ct.Crim.App. 2000)



    Appellant’s particular argument in this regard is as follows:



          Appellant does not contend that a “legal
          error” has been committed such as would
          warrant dismissing the charges. Yet, by
          the lower court’s ruling that the post
          trial delay was “both unexplained and
          unreasonable” and “casts a shadow of
          unfairness over our military justice
          system,” his case was quite possibly one
          in which something less than the entire
          sentence should have been approved. The
          Coast Guard Court, however, by focusing on
          this court’s Article 67(c) standard of
          review, appears to have overlooked its
          responsibility under Article 66(c). While


                                 2
United States v. Tardif, 01-0520/CG


            the court did not explicitly say so, it is
            apparent from the majority decision that
            the court viewed itself as powerless to
            award any relief for post trial delay
            because Appellant had not established
            legal prejudice. While adherence to both
            the letter and the spirit of this court’s
            precedents is laudable, there is nothing
            in the history of this court which
            requires a service court to sit on its
            hands while a practice which compromises
            the integrity of the military justice
            system in the eyes of the world is allowed
            to flourish.


Final Brief at 31 (emphasis added).

    I have read carefully the opinions of the Court of Criminal

Appeals in this case and conclude that it has not overlooked its

responsibility under Article 66(c).    In its original opinion, it

stated, “Moreover, on the basis of the entire record, we have

determined that this sentence should be approved.”    55 MJ at 669.

The lower court was well aware of its sentence approval power and

did not state it was barred from considering simple post-trial

delay as one factor among many in determining an appropriate

sentence.    Absent such a statement, appellant’s argument is pure

speculation and invites us to overstep our jurisdictional bounds.

See United States v. Higbie, 

12 USCMA 298, 300

, 

30 CMR 298, 300

(1961); see also United States v. Christopher, 

13 USCMA 231, 236

,

32 CMR 231, 236

 (1962).



    In addition, I disagree with appellant that the sentence

approval powers of the Courts of Criminal Appeals should be used



                                  3
United States v. Tardif, 01-0520/CG


to “combat the recurrent problem of unexplained and inordinate

post-trial delay in the review of courts-martial.”      Final Brief

at 10.   Article 66, UCMJ, expressly limits the Courts of Criminal

Appeals’ exercise of this unique sentencing power to matters in

the “entire record” before them.       This limitation on the sentence

approval powers under Article 66, UCMJ, is consistent with the

intent of Congress to provide each individual military accused “a

specially suited sentence.”   See United States v. Stene, 

7 USCMA 277, 281

, 

22 CMR 67, 71

 (1956).    Clearly, its exercise as a

judicial tool to remedy unevidenced problems in the military

justice system at large is inconsistent with this statutory

purpose and “ultra vires.”    See United States v. Hasting, 

461 U.S. 499, 505-07

 (1983) (holding that the interests preserved by

the doctrine of harmless error cannot be lightly and casually

ignored in order to chastise what court viewed as prosecutorial

overreaching).



    Finally, I am aware that a majority of this Court in the past

has quite broadly construed Article 66(c), UCMJ, to provide to a

Court of Criminal Appeals an essentially unreviewable “carte

blanche to do justice” for a military accused.      See United States

v. Claxton, 

32 MJ 159, 162

 (CMA 1991).      In Claxton, this Court

approved the service appellate court’s decision to ignore the law

of waiver in order to grant sentencing relief to an accused for

an unobjected to evidentiary error occurring during a sentence



                                   4
United States v. Tardif, 01-0520/CG


hearing.    I did not agree with this movement to create courts of

equity, not of law, in our subordinate court system.   United

States v. 

Claxton, supra at 165

 (Sullivan, C.J., concurring in

part and in the result).   More recently, in United States v.

Quiroz, 

55 MJ 334, 338-39

 (2001), a majority of this Court even

went so far as to permit the appellate court below to ignore the

law of multiplicity in granting findings relief while vaguely

citing the service appellate court’s power under Article 66(c),

UCMJ.



    This aberrant line of decisions should not be extended here

to hold that the Courts of Criminal Appeals may also flout the

law on post-trial delay in discharging their sentence approval

function.   See United States v. Hutchinson, No. 02-5001, __ MJ __

(2002)(holding a Court of Criminal Appeals may not exercise its

sentence approval powers to criticize a state court conviction).

Article 66(c), UCMJ, was not intended by Congress as a means for

a subordinate court to evade or avoid unpopular legal precedent

of this Court.   See United States v. Sills, 

56 MJ 239

 (2002).

This is neither the letter nor the spirit of Article 66(c), UCMJ,

nor is it what the Supreme Court meant by the “power to determine

sentence appropriateness.”   See Jackson v. Taylor, 

353 U.S. 569, 576

 (1957) (holding Article 66(c) permits reassessment of

sentence by service appellate court after legal error found);

see also United States v. Healy, 

26 MJ 394, 396

 (CMA 1988).     In



                                  5
United States v. Tardif, 01-0520/CG


my view, the service appellate court abuses its discretion when

it exercises its sentencing approval power in deliberate

derogation of our legal precedent.    See generally United States

v. Dukes, 

5 MJ 71, 73

 (CMA 1978).



    Accordingly, I again dissent and urge this Court to return to

the rule of law as enacted by Congress.   See United States v.

Quiroz, supra at 345

 (Sullivan, J., dissenting); United States v.

Waymire, 

9 USCMA 252, 255

, 

26 CMR 32, 35

 (1958).   The sentence

approval powers given to the service appellate courts are indeed

unique, but it is equally clear that Congress did not envision

them as a standardless supervisory remedy for judicially

perceived inequities in the military justice system.    See United

States v. Sothen, 

54 MJ 294, 296

 (2001); United States v.

Christopher, 

13 USCMA at 236-37

, 

32 CMR at 236-237

.    Moreover,

when the Courts of Criminal Appeals exercise their unique

sentence approval powers under Article 66(c), UCMJ, they should

do so based on the entire record, and consistent with

constitutional and statutory law, as well as our decisional

precedent.*   See United States v. Higbie, 

12 USCMA at 300

, 30 CMR

*
  The majority remands this case for reconsideration on the
basis that the appellate court below misunderstood its broad
authority under Article 66(c), UCMJ. It then proceeds to
redefine the law of post-trial delay and hold that unreasonable
prejudicial post-trial delay may be remedied by confinement
credit. I disagree with the first holding and conclude that,
under the majority’s remand, the second holding is clearly dicta
which should not be decided in this case.



                                 6
United States v. Tardif, 01-0520/CG


at 300; United States v. 

Claxton, supra at 165

 (Sullivan, C.J.,

concurring in part and in the result).



    In sum, I believe the Court below was right when it stated in

its original opinion in this case:



           [W]e are to be guided by the opinions of
          the Court of Appeals for the Armed Forces
          on this subject [post-trial delay by the
          convening authority]. Applying the
          standard that Court has set forth, we
          find that prejudice directly attributable
          to the delay in this case has not been
          established, and thus no relief is
          warranted.

55 MJ at 669.   The court below was following the law.   The

majority now is making new law, a process best left to Congress.




                                 7