United States v. Steele ( 2023 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Andrew D. STEELE, Master Sergeant
United States Army, Appellant
No. 22-0254
Crim. App. No. 20170303
Argued January 24, 2023—Decided March 30, 2023
Military Judges: Lanny J. Acosta Jr. and
Sean Mangan (trial); J. Harper Cook and
Matthew S. Fitzgerald (rehearing)
For Appellant: Captain Sarah H. Bailey (argued);
Colonel Michael C. Friess, Lieutenant Colonel Dale
C. McFeatters, and Major Mitchell Herniak (on
brief); Jonathan F. Potter, Esq.
For Appellee: Major Jennifer A. Sundook (argued);
Colonel Christopher B. Burgess, Lieutenant Colonel
Jacqueline J. DeGaine, and Captain Timothy R. Em-
mons (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, and Judge SPARKS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Steele, No. 20-0254/AR
Opinion of the Court
Judge MAGGS delivered the opinion of the Court.
Before reaching this Court, Appellant appealed twice to
the United States Army Court of Criminal Appeals
(ACCA). In his first appeal, the ACCA affirmed the find-
ings of guilt but ordered a rehearing on the sentence.
United States v. Steele (Steele I), No. ARMY 20170303,
2019 CCA LEXIS 95, at *9-10, 2019 WL 1076601, at *5 (A.
Ct. Crim. App. Mar. 5, 2019) (unpublished). Resentencing
occurred, and Appellant appealed to the ACCA again.
United States v. Steele (Steele II), 82 M.J. 695, 697 (A. Ct.
Crim App. 2022). In this second appeal, Appellant raised a
new argument with respect to the findings that he had not
raised at trial, in his first appeal, or at resentencing. The
ACCA, however, declined to consider this new argument
because Appellant could not show “good cause for his fail-
ure to raise the claim in the prior appeal” and “actual prej-
udice resulting from the newly-raised assignment of error.”
Id. at 699-700. The ACCA adopted this “cause and preju-
dice” standard in part because federal courts use this
standard when hearing successive appeals in habeas cor-
pus litigation. Id. at 699 (citing United States v. Chaffin,
No. NMCCA 200500513, 2008 CCA LEXIS 94, at *6, 2008
WL 746812, at *2 (N-M. Ct. Crim. App. Mar. 20, 2008) (un-
published)). In the sole assigned issue before this Court,
Appellant contends that the ACCA’s application of a cause
and prejudice standard violated Article 66, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). 1
We remand the case for the ACCA to clarify whether
Appellant waived or forfeited the issue that he raised for
the first time in his second appeal. Answering this question
is essential to the resolution of the case, but the ACCA’s
opinion does not specify whether it considered the issue to
be waived or forfeited and the parties did not fully brief it.
As we explain more fully below, if an issue is not waived,
1 We granted review of the following assigned issue:
“Whether the Army Court improperly applied a federal habeas
standard that is inconsistent with Article 66, UCMJ, in finding
that Appellant forfeited review of his claim.”
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Opinion of the Court
then the ACCA must review the issue, either for error or
for plain error. But if an issue is waived, or no relief is
available under plain error review, then the ACCA still has
discretion under Article 66, UCMJ, to overlook the waiver
or forfeiture and address the issue. In deciding how to ex-
ercise this discretion, the ACCA may consider issues of
cause and prejudice.
I. Background
Appellant and other enlisted members drank alcohol,
took off their clothes, and engaged in sexual acts in a hot
tub located in a communal area of an apartment complex.
A military judge sitting as a general court-martial subse-
quently found Appellant guilty, pursuant to his pleas, of
one specification of violating a lawful general order (for
providing alcohol to a person under twenty-one years old)
and one specification of fraternization in violation of Arti-
cles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934 (2012). The
military judge also found Appellant guilty, contrary to his
pleas, of one specification of indecent exposure in violation
of Article 120c, UCMJ, 10 U.S.C. § 920c (2012), and one
specification of disorderly conduct in violation of Article
134, UCMJ. The military judge sentenced Appellant to a
bad-conduct discharge and reduction to the grade of E-3.
The convening authority approved the findings and sen-
tence as adjudged.
On appeal, Appellant argued that the evidence for find-
ing him guilty of indecent exposure was legally and factu-
ally insufficient. The ACCA rejected this argument and af-
firmed the findings. Steele I, 2019 CCA LEXIS 95, at *3 n.4,
2019 WL 1076601, at *1 n.4. Appellant also argued that the
convening authority acted improperly by affirming his sen-
tence without a substantially verbatim transcript because
twenty-seven minutes of the presentencing portion of the
trial had not been recorded. The ACCA agreed and set
aside the sentence and authorized a rehearing on the sen-
tence. Id. at *4, *9-10, 2019 WL 1076601, at *3, *5. A re-
hearing on the sentence occurred. This time, the court-mar-
tial sentenced Appellant to reduction to the grade of E-5.
The convening authority approved the new sentence.
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Opinion of the Court
In his second appeal to the ACCA, Appellant personally
asserted, pursuant to United States v. Grostefon, 12 M.J.
431, 433 (C.M.A. 1982), that Article 120c, UCMJ, was un-
constitutionally vague as applied to him and asked the
ACCA to set aside the finding that he was guilty of indecent
conduct. Appellant had not raised this argument at his in-
itial trial, on his first appeal to the ACCA, or at the rehear-
ing on the sentence. The ACCA specified that the parties
should brief both this issue and whether the ACCA had dis-
cretion to review it. The ACCA ultimately declined to pro-
vide relief for procedural reasons, holding:
[I]n second and successive appeals (like this one),
we will provide relief for a new claim only where
the appellant has shown both 1) good cause for his
failure to raise the claim in the prior appeal; and
2) actual prejudice resulting from the newly-
raised assignment of error; or 3) that manifest in-
justice amounting to actual innocence would re-
sult if we do not address the new claim.
Steele II, 82 M.J. at 699-700.
In adopting this test for when it would consider new
arguments on successive appeals, the ACCA relied on two
decisions by other Courts of Criminal Appeals that had also
used a “cause and prejudice” standard in deciding whether
to review new claims raised in subsequent appeals. Id. at
699 (first citing United States v. Shavrnoch, 47 M.J. 564,
566-69 (A.F. Ct. Crim. App. 1997), aff’d in part and set
aside in part on other grounds by 49 M.J. 334 (C.A.A.F.
1998), and then citing Chaffin, 2008 CCA LEXIS 94, 2008
WL 746812). The ACCA also cited numerous similar
federal court decisions that had applied the cause and
prejudice standard when reviewing new claims raised in
habeas corpus cases. Id. at 698-99.
Applying this standard, the ACCA determined that Ap-
pellant had “failed to show either cause, prejudice, or man-
ifest injustice related to his new claim.” Id. at 700. The
Court saw no reason that Appellant could not have raised
the issue earlier. Id. It further doubted that the constitu-
tional argument had merit. Id. And it reasoned that even
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Opinion of the Court
if the court were to set aside the finding that he was guilty
of indecent exposure, “he would still stand convicted of
three other offenses, and he received only a reduction to
E-5 at his resentencing.” 2 Id.
In its opinion, the ACCA did not expressly state
whether Appellant had waived or forfeited his claim that
Article 120c, UCMJ, was unconstitutionally vague. The
ACCA never mentioned forfeiture and addressed waiver
only obliquely in its discussion of whether Appellant had
shown good cause for failing to assert this argument ear-
lier. In a footnote, the ACCA stated in relevant part: “Fi-
nally, we note that under the version of Article 66 applica-
ble in this case, we could reach the merits of appellant’s
new claim under our ‘should be approved’ power, notwith-
standing waiver or procedural default. We refuse to do so.”
Id. at 700 n.6 (citation omitted). But the Court did not say
that waiver or forfeiture had occurred.
On appeal to this Court, Appellant argues that “[b]y ap-
plying a cause and prejudice standard to considering issues
raised after a case is returned to the trial court, the Army
Court created an unduly burdensome and exclusionary
standard that cannot be reconciled with the wide-ranging
scope and intent of Article 66, UCMJ.” He contends that
the cause and prejudice standard, which originated in fed-
eral habeas corpus cases, “is inappropriate for an Article
66, UCMJ direct appeal.” He asked this Court to remand
the case for a proper review under Article 66, UCMJ, which
in his view would require the ACCA to consider his consti-
tutional objection.
II. Applicable Law
The ACCA had jurisdiction to review the findings and
sentence in Appellant’s case under Article 66(c), UCMJ.
This provision states in relevant part:
2 One judge wrote separately, joining the court’s decision but
also expressing the view that Appellant’s constitutional claim
had no merit. Id. at 701 (Smawley, C.J., concurring).
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Opinion of the Court
In a case referred to it, the Court of Criminal Ap-
peals may act only with respect to the findings
and sentence as approved by the convening au-
thority. 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.
10 U.S.C. § 866(c) (2012). This Court has held that if an
accused raises an issue for the first time on appeal, a Court
of Criminal Appeals (CCA) has discretion “to determine the
circumstances, if any, under which it [will] apply waiver or
forfeiture.” United States v. Quiroz, 55 M.J. 334, 338
(C.A.A.F. 2001) (emphasis added). This Court has reasoned
that the power of a CCA to overlook waiver and forfeiture,
if it so chooses, stems from the language of Article 66(c),
UCMJ, which directs a CCA to affirm only those findings
and sentences that it “determines, on the basis of the entire
record, should be approved.” Id.A CCA’s discretion under Article 66(c), UCMJ, however,
runs in only one direction: although a CCA may choose to
review a waived issue, a CCA cannot refuse to review an
issue that was not waived. See, e.g., United States v.
Gaskins, 72 M.J. 225, 232 (C.A.A.F. 2013) (holding that the
CCA erred in not reviewing an issue that was not waived).
Similarly, although a CCA may use its power under Article
66(c), UCMJ, to overlook a forfeiture, it cannot refuse to
apply, at a minimum, plain error review. See, e.g., id.(holding that plain error review applied to an issue that
was forfeited).
III. Discussion
In this case, as noted above, the ACCA’s opinion was
unclear in a key respect: The ACCA did not expressly rule
on whether Appellant waived his constitutional challenge
to his indecent exposure argument. The issue of waiver is
important based on the principles explained above. On one
hand, if Appellant did not waive this challenge, then the
ACCA should have considered it either for error or plain
error. On the other hand, if Appellant did waive the issue,
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Opinion of the Court
then the ACCA was under no obligation to review the issue
at all, but it could review the issue in the exercise of its
discretion under Article 66(c), UCMJ. See Quiroz, 55 M.J.
at 338. A CCA may select its own standard for exercising
its discretion under Article 66(c), UCMJ, to review waived
issues or forfeited issues where there is no plain error. Id.If it so chooses, the CCA may require a showing of cause
and prejudice before it will review such issues.
Whether an issue is waived or forfeited is an issue of
law that this Court could decide. But here we think it pref-
erable to set aside the ACCA’s decision and remand the
case to allow the ACCA to rule on this question in the first
instance or to clarify its prior ruling. 3 In deciding whether
Appellant’s argument was waived or forfeited, the ACCA
may consider the Rules for Courts-Martial, its own appel-
late rules, and other principles of appellate litigation estab-
lished by precedent. If the ACCA determines that the
vagueness issue was waived, the ACCA may choose not to
review it further. If the ACCA finds that the vagueness is-
sue was forfeited, but not waived, then at a minimum the
ACCA must review it for plain error. In either case, the
ACCA has discretion to grant relief under its Article 66,
UCMJ, powers, notwithstanding a waiver or forfeiture. 4
IV. Conclusion
The decision of the United States Army Court of Crimi-
nal Appeals is set aside. The case is returned to the Judge
Advocate General of the Army for remand to that court for
further review, consistent with this opinion, under Article
3 Appellant’s counsel stated at oral argument that Appellant
had not waived the issue. The Government does not expressly
disagree with this position in its brief but does cite the rule that
an appellant may be precluded from raising issues on appeal due
to waiver.
4 The ACCA appears to have already decided that it would
not use its authority under Article 66(c), UCMJ, for this purpose.
Steele II, 82 M.J. at 700 n.6. But given our uncertainty about the
ACCA’s analysis, we leave it to the ACCA to determine the im-
port of this prior decision upon remand.
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Opinion of the Court
66, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866 (2012).
8