                         UNITED STATES, Appellee

                                         v.

                  Jeffrey D. BEATTY, Master Sergeant
                       U.S. Air Force, Appellant

                                  No. 06-0793
                           Crim. App. No. 35523

       United States Court of Appeals for the Armed Forces

                         Argued February 6, 2007

                          Decided April 23, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: William E. Cassara, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Major Anniece Barber (on brief).


For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Major
Kimani R. Eason (on brief).


Military Judge:    R. Scott Howard



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Beatty, No. 06-0793/AF


     Judge STUCKY delivered the opinion of the Court.

     Master Sergeant Jeffrey D. Beatty was convicted by a

general court-martial with members and notwithstanding his

pleas, of one specification of indecent liberties with a child

and one specification of indecent acts with a child,1 both in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2000).   He was acquitted of one

specification of assault, in violation of Article 128, UCMJ, 10

U.S.C. § 928 (2000).   He was sentenced to confinement for

eighteen months and reduction to E-1.   The convening authority

approved the findings and sentence, waiving the mandatory

forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b (2000),

for a period of six months for the benefit of Appellant’s

dependents.   The United States Air Force Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.   United States v. Beatty, No. ACM 35523, 2006 CCA LEXIS

124, 2006 WL 1510870 (A.F. Ct. Crim. App. May 30, 2006).

     We granted review on the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS FAILED
     TO CONDUCT A PROPER REVIEW UNDER ARTICLE 66(c), UCMJ,
     BECAUSE THE COURT CONSIDERED EVIDENCE OUTSIDE THE
     RECORD IN CONDUCTING ITS FACTUAL AND LEGAL SUFFICIENCY
     REVIEWS.




1
  The members excepted the language “and giving her a vibrator”
in the indecent acts specification.

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United States v. Beatty, No. 06-0793/AF


       At the time of his court-martial in October 2002, Appellant

was forty-one years old and had twenty-three years of active

duty service in the Air Force.    He was a master sergeant (E-7).

He was married and had two children, a son and a daughter, JB,

who was seventeen years old at the time of the court-martial.

       JB testified that she arrived at Ellsworth Air Force Base,

South Dakota, with her family in the fall of 1996 and moved into

base housing.   The family remained there until August 2001, when

they moved off base.   JB lived off base with her family until

December 2001, when she moved out as a consequence of the

allegations that gave rise to the court-martial.     JB further

testified that, beginning in the spring of 2000 when she was

fourteen or fifteen, Appellant called her into his bedroom and

masturbated in front of her while he checked her homework.    This

occurred two or three times per week.   This activity continued

after the family moved off base, though not as frequently.

       Soon after the move to off-base quarters, Appellant went on

temporary duty to Saudi Arabia.   JB testified that upon

Appellant’s return he had acquired two piercings on the

underside of his penis, each containing a metal rod with a ball

at each end.    In e-mail communications during the absence, JB

testified, Appellant stated that he was bringing her a gift.      He

described it as being eight inches long, round, and usable in

bed.   She thought he was referring to a vibrator.   A few days


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United States v. Beatty, No. 06-0793/AF


after he returned, he did indeed leave a vibrator on her bed,

stating that it was for her mother but she could use it as well.

The last incident involving Appellant and JB occurred shortly

before she reported Appellant to authorities.   She went into his

bedroom (apparently voluntarily) to find him masturbating.      He

asked her to get some oil from the bathroom.    She initially

refused, but eventually did get it and dripped it on his penis

without direct contact.

     Shortly after this incident, JB reported Appellant’s

conduct to a friend and the friend’s mother.    The police were

called; JB was moved to a group home, and an investigation and

ultimately this court-martial ensued.

     The credibility of JB was a significant issue at trial.         On

cross-examination, she admitted to having a problem with lying

and being counseled for doing so.    She further admitted to lying

to the police about her previous sexual encounters with boys.

Her brother testified that, although she told him things of a

personal nature, she had never mentioned the incidents with

Appellant.   Both the brother (who admitted that he was angry

with JB) and their mother opined that JB was untruthful.2


2
  In two statements (the first one unsworn, the second an
affidavit) filed well over a year after trial, JB recanted her
testimony against Appellant. The Court of Criminal Appeals, in
connection with Appellant’s petition for a new trial, ordered a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967). Beatty, No. ACM 35523, 2006 CCA LEXIS 124,

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United States v. Beatty, No. 06-0793/AF


Appellant testified that he did not call JB into the bedroom

while he was masturbating, but did state that she had walked in

on him while he engaged in the act.    He further stated that the

allusion to a round, eight-inch item was to a perfume bottle,

not a vibrator.

                                 II.

     The Courts of Criminal Appeals, like this Court and indeed

the entire system of military justice, are creatures of statute,

enacted by Congress pursuant to the express constitutional grant

of power “[t]o make Rules for the Government and Regulation of

the land and naval Forces.”    U.S. Const. art. I, § 8, cl. 14;

William Winthrop, Military Law and Precedents 17 (2d ed. 1920).

     In enacting the UCMJ in 1950, Congress saw fit to give the

Boards of Review (now the Courts of Criminal Appeals) very broad

powers with respect to the approved findings and sentences of

courts-martial.   In language substantively unchanged since 1950,

Article 66(c), UCMJ, states:

     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


at *2, 2006 WL 1510870, at *1. Ultimately, the Court of
Criminal Appeals, on the strength of the DuBay record, denied
the petition for a new trial. 2006 CCA LEXIS 124 at *2, 2006 WL
1510870 at *1. The recantations and petition for a new trial
are not at issue before us.

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United States v. Beatty, No. 06-0793/AF


     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.

10 U.S.C. 866(c) (2000) (emphasis added).

     Since their original incarnation as Boards of Review, it

has been recognized that the Courts of Criminal Appeals are

“intermediate appellate judicial tribunals.”   United States v.

Fagnan, 12 C.M.A. 192, 194, 30 C.M.R. 192, 194 (1961); United

States v. Whitman, 3 C.M.A. 179, 180, 11 C.M.R. 179, 180 (1953).

In words that have often been cited, we described the Article

66(c), UCMJ, authority as an “awesome, plenary de novo power of

review [that] grants unto the Court . . . authority to, indeed,

‘substitute its judgment’ for that of the military judge. . . .

[and] for that of the court members.”   United States v. Cole, 31

M.J. 270, 272 (C.M.A. 1990).   A Court of Criminal Appeals may

not affirm the findings and sentence of a court-martial unless

it finds them to be both factually and legally sufficient.

Article 66(c), UCMJ.

     From the beginning of jurisprudence under the UCMJ,

questions arose as to what constituted the “entire record” for

purposes of Article 66(c), UCMJ, review, regarding both findings

and sentence.3   In a succession of early cases, we established



3
  The first case ever decided by the Court of Military Appeals
established the proposition that this Court would not determine

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United States v. Beatty, No. 06-0793/AF


that the review of findings -- of guilt and innocence -- was

limited to the evidence presented at trial.   United States v.

Duffy, 3 C.M.A. 20, 23, 11 C.M.R. 20, 23 (1953) (regarding

convening authority’s review); Whitman, 3 C.M.A. at 180, 11

C.M.R. at 180; United States v. Lanford, 6 C.M.A. 371, 379, 20

C.M.R. 87, 95 (1955); see United States v. Bethea, 22 C.M.A.

223, 224-25, 46 C.M.R. 223, 224-25 (1973); United States v.

Holt, 58 M.J. 227, 232 (C.A.A.F. 2003).   What constitutes the

“entire record” for review of sentence appropriateness has been

understood to include not only evidence admitted at trial, but

also the matters considered by the convening authority in his

action on the sentence.   Bethea, 22 C.M.A. at 225, 46 C.M.R. at

225; Fagnan, 12 C.M.A. at 195, 30 C.M.R. at 195.4

     In this case, as noted earlier, the Air Force Court of

Criminal Appeals affirmed the findings and sentence.   One

of the issues raised before the Court of Criminal Appeals

by Appellant was the legal and factual sufficiency of the

evidence regarding his convictions for indecent liberties



questions of fact, but was limited to questions of law.   United
States v. McCrary, 1 C.M.A. 1, 3, 1 C.M.R. 1, 3 (1951).
4
  In Lanford, 6 C.M.A. at 379, 20 C.M.R. at 95, Chief Judge Quinn
contrasted the limited nature of the record before the Board of
Review when acting on sentence appropriateness with the freedom
of the convening authority, who, according to Judge Brosman in
United States v. Coulter, 3 C.M.A. 657, 663, 14 C.M.R. 75, 81
(1954) (Brosman, J., concurring)), could ask “a guy named Joe”
about an appropriate sentence.

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United States v. Beatty, No. 06-0793/AF


with a person under sixteen and indecent acts with another.

2006 CCA LEXIS 124, at *3, 2006 WL 1510870, at *1.   In

reviewing for sufficiency, the Court of Criminal Appeals

first pointed out that the evidence as to these charges and

specifications was “based almost entirely” on the

allegations of JB, and noted that her credibility was an

issue.    2006 CCA LEXIS 124, at *3-*4, 2006 WL 1510870, at

*1.   The court then stated:

      JB was 17-years-old [sic] when she testified at trial,
      and she was unwavering in her account of the
      appellant’s actions. JB testified four times under
      oath during the course of the proceeding: Twice
      during pretrial motion practice, once on the merits,
      and once in presentencing.

            . . . .

      In her trial testimony, JB admitted to a history of
      telling lies to numerous people about a variety of
      things. But, she was consistent in her testimony
      throughout the proceeding and presented a nearly
      clinical description of the appellant’s actions. We
      conclude a rational factfinder could have found the
      appellant guilty of all the elements of the offenses
      beyond a reasonable doubt.

2006 CCA LEXIS 124, at *5-*6, 2006 WL 1510870, at *2 (emphasis

added).

      Appellant argues that the Court of Criminal Appeals made

“credibility assessments and factual and legal sufficiency

determinations based upon evidence never put before the court

members.”   This “injected fundamental unfairness” into the case

by “relying upon tactics that are off-limits even to the most


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United States v. Beatty, No. 06-0793/AF


zealous of trial counsel.”    The Government responds by

maintaining that the court did not make credibility

determinations based on evidence not before the members, but

simply “determined that the testimonies were consistent” with

the evidence of record, which “bolstered their determination

regarding her credibility.”

                                III.

     We impute no intent to engage in “fundamental unfairness”

or rely upon “off-limits” tactics to the Court of Criminal

Appeals.   The judges of that court, as senior judge advocates,

are presumed to know and correctly apply the law.      United States

v. Washington, 57 M.J. 394, 399-40 (C.A.A.F. 2002).

Nonetheless, the action of the court in assessing JB’s

credibility for purposes of determining the factual and legal

sufficiency of the evidence is at best ambiguous.      We cannot

determine from this record whether the court in fact considered

JB’s testimony in pretrial motion practice or in presentencing

on the issue of her credibility.       In a case such as this, where

the underlying validity of the Article 66(c), UCMJ, review is in

question, we do not test for prejudice; rather, the remedy is to

remand the case for a proper factual and legal sufficiency

review of the findings of guilty.      Holt, 58 M.J. at 233; United

States v. McAllister, 55 M.J. 270, 277 (C.A.A.F. 2001) (dictum).




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United States v. Beatty, No. 06-0793/AF

     Our remand of this case should not be construed as any

determination by this Court as to either the credibility of JB

or whether the Court of Criminal Appeals could or could not

reach the same result with respect to the legal and factual

sufficiency based on the evidence presented at trial.   Both

legal and factual sufficiency are matters for the lower court to

consider de novo.   See United States v. Najera, 52 M.J. 247, 249

(C.A.A.F. 2000) (service courts review legal sufficiency

questions de novo); United States v. Ward, 64 M.J. 79 (C.A.A.F.

2006) (summary disposition) (“[T]he Court of Criminal Appeals

conducts a de novo review of factual sufficiency.”).

                                 IV.

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.   The case is returned to the

Judge Advocate General of the Air Force for remand to that court

for further proceedings consistent with this opinion.




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