                           UNITED STATES, Appellee

                                        v.

              Troy B. JENKINS, Quartermaster Third Class
                         U.S. Navy, Appellant


                                  No. 03-0473
                          Crim. App. No. 200101151


          United States Court of Appeals for the Armed Forces

                            Argued March 2, 2004

                            Decided June 21, 2004

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



                                    Counsel

For Appellant:      Lieutenant Elysia G. Ng, JAGC, USNR (argued).

For Appellee: Captain Glen R. Hines Jr., USMC (argued); Colonel
   M. E. Finnie, USMC, and Lieutenant Lars C. Johnson, JAGC,
   USNR (on brief).




Military Judge:      D. M. White




   THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Jenkins, No. 03-0473/NA

    Judge BAKER delivered the opinion of the Court.

    On November 29, 2000, at Bremerton, Washington, Appellant

was tried by a general court-martial composed of a military

judge alone.    Pursuant to his pleas, Appellant was convicted of

one count of rape and one count of sodomy by force in violation

of Articles 120 and 125, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 920 and 925 (2000),

respectively.   Contrary to his plea, Appellant was also

convicted of one count of indecent acts in violation of Article

134, UCMJ, 10 U.S.C. § 934 (2000).      He was sentenced to a

dishonorable discharge, confinement for twelve years, total

forfeitures, and reduction to the lowest enlisted grade.        The

convening authority approved the sentence as adjudged, but

suspended confinement in excess of nine years for a period of

five years.    The Navy-Marine Corps Court of Criminal Appeals

(CCA) affirmed the findings of guilty with respect to Charges I

and II, but dismissed and set aside the finding of guilty for

indecent acts and dismissed Charge III on the ground that the

two offenses were multiplicious.       United States v. Jenkins, NMCM

200101151, slip op. at 7 (N-M. Ct. Crim. App. 2003).      Consistent

with this Court’s decisions in United States v. Peoples, 29 M.J.

426, 428 (C.M.A. 1990) and United States v. Sales, 22 M.J. 305,

307-08 (C.M.A. 1986), the CCA reassessed Appellant’s sentence

and affirmed only so much of the adjudged sentence providing for


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confinement for 138 months, reduction to E-1, total forfeiture

of pay and allowances, and a dishonorable discharge.   Jenkins,

NMCM 200101151, slip op. at 14.

     This Court granted review of the following issues:

                                      I

     WHETHER THE LOWER COURT’S VERBATIM REPLICATION OF
     SUBSTANTIAL PORTIONS OF THE GOVERNMENT’S ANSWER BRIEF AS
     THAT COURT’S OPINION CONSTITUTES AN ABUSE OF DISCRETION,
     NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND
     SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

                                      II

     WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED EVIDENCE
     OUTSIDE OF APPELLANT’S STATEMENTS DURING THE PROVIDENCE
     INQUIRY IN EVALUATING THE FACTUAL BASIS FOR APPELLANT’S
     PLEAS.

At heart, the question presented by granted Issue I is whether

Appellant received the legal and factual review he was entitled

to under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).

Because we cannot conclude that he received such an assessment,

we remand for a new Article 66(c) review conducted by a separate

panel comprised of judges who did not participate in Appellant’s

prior evaluation.1



                           Background

     The CCA opinion in Appellant’s case is 15 pages in length.

It consists of 45 paragraphs, not including record excerpts.

1
   In light of this Court’s decision regarding Issue I, we need
not address Issue II.

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Thirty-one of these paragraphs are taken virtually or wholly

verbatim from 29 of the 33 paragraphs in the Government’s

nineteen-page Answer before the CCA.      This is done without

attribution.   These paragraphs include the statement of facts,

legal analysis, and conclusions of law.

     With respect to Issue II, Appellant complains that the CCA

relied on testimony from the victim relating to Charge III,

which Appellant contested, in upholding the factual providence

of Appellant’s pleas to Charges I and II.      The victim’s

testimony is recited in the CCA’s opinion within those

paragraphs derived from the Government’s Answer.      See Jenkins,

NMCM 20010115, slip op. at 5-6.

     The lower court’s opinion also includes the following

original paragraph:

           We have carefully reviewed the record of trial,
     Appellant's five assignments of error, the Government’s
     answer, and Appellant’s reply. We conclude that there is
     merit in Appellant’s summary fifth assignment of error and
     that Appellant is entitled to relief. We shall take
     appropriate corrective action in our decretal paragraph.
     In all other respects we conclude that the findings and
     sentence, upon reassessment, are correct in law and fact
     and that no error materially prejudicial to the substantial
     rights of Appellant was committed. Arts. 59(a) and 66(c),
     UCMJ.

Jenkins, NMCM 200101151, slip op. at 2 (footnote omitted).

     Based on these facts, Appellant argues that he has not

received the independent CCA review of his conviction that he is

entitled to under Article 66(c).       Further, Appellant maintains


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United States v. Jenkins, No. 03-0473/NA

that the CCA abandoned its impartiality as an independent court,

denying him his due process of law.

     Based on the lower court’s statement that it carefully

reviewed the record of trial, as well as its decision to grant

relief to Appellant, the Government argues that there was no

error in the CCA’s review of Appellant’s case.   The Government

also contends there was no appearance of partiality by the lower

court.   Moreover, the Government maintains that it is not

possible for this Court to evaluate the independence of the

CCA’s review without piercing the veil of the lower court’s

deliberative process, something this Court either should not do

or is lawfully precluded from doing.



                            Discussion

     Article 66 provides the statutory underpinning for the

service Courts of Criminal Appeal.    Among other things, the

Article provides that

     [i]n 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.

Article 66(c), UCMJ.



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United States v. Jenkins, No. 03-0473/NA

The legislative history makes it clear that Congress intended

the CCAs to serve as appellate bodies independent of the Judge

Advocate Generals and Government appellate attorneys.2   The CCAs

are intended to not only uphold the law, but provide a source of

structural integrity to ensure the protection of service

members’ rights within a system of military discipline and

justice where commanders themselves retain awesome and plenary

responsibility.3   For this reason, Congress endowed the CCAs with

authority to find facts as well as address questions of law.    As

this Court has often noted, such authority is awesome, including

as it does “broad factfinding power and plenary de novo power to

review questions of law.”   United States v. Duncan, 38 M.J. 476,

2
  See Bill to Unify, Consolidate, Revise, and Codify the Articles
of War, the Articles for the Government of the Navy, and the
Disciplinary Laws of the Coast Guard, and to Enact and Establish
a Uniform Code of Military Justice: Hearings on S. 857 and H.R.
4080 Before a Subcomm. of the Comm. on Armed Services, 81st
Cong. 151 (1949)(statement of Colonel John P. Oliver, Judge
Advocate General, Reserve, Legislative Counsel of the Reserve
Officer’s Association)(“Article of War 66, subparagraph (e),
page 53, as has been stated by many of the other witnesses, we
do not feel it sound judicial procedure to permit the Judge
Advocate General who is displeased with an opinion by one board
of review, to refer the case back or to another board of review.
Surely, no board of review can act honestly and independently
under such supervision and restriction.”).
3
  See id. at 623 (statement of Frederick P. Bryan, Chairman,
Special Committee on Military Justice of the Bar Association of
the City of New York)(“The new set-up of the courts, whereby you
have a law officer on the one hand who exercises judicial
function and the lay members of the court . . . on the other who
in effect perform the functions of a jury, is excellent. I
think that that serves again as a measure of protection to the
accused.”).

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United States v. Jenkins, No. 03-0473/NA

479 n. 7 (C.M.A. 1993)(citing United States v. Cole, 31 M.J. 270

(C.M.A. 1990)).   See also United States v. Quiroz, 55 M.J. 334,

338 (C.A.A.F. 2001); United States v. Weatherspoon, 49 M.J. 209,

212 (C.A.A.F. 1998).

     After reviewing the CCA’s opinion, we are left in doubt

that Appellant received the independent Article 66(c) review to

which he was entitled.    On the one hand, there are indicia

within the opinion of independent review.   The lower court

stated that it carefully reviewed the record, including the

Government’s Answer and Appellant’s Reply, and based on that

evaluation concluded that Charges I and II should be affirmed.

Moreover, the lower court granted Appellant relief in response

to one of his five assigned errors, reassessed his sentence, and

granted six months relief.   Clearly, this action, which the

Government opposed, was taken pursuant to the CCA’s independent

Article 66(c) authority.

     On the other hand, the portions of the Government’s Answer

incorporated into the CCA’s opinion are substantial.   This

material includes matters of fact, including contested facts, as

well as matters of law.    In the Article 66(c) context,

replication of a party’s brief disguises the nature and

substance of the court’s independent factual and legal review.

As a result, neither we nor the parties can be sure where and

perhaps whether the Government’s argument ends and the lower


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United States v. Jenkins, No. 03-0473/NA

court’s independent analysis begins.    This conclusion is not

based on a mathematical calculation of replication.      Nor need we

look within the lower court’s deliberations to make such a

determination.    It is based on the manifest demonstration on the

face of the CCA’s opinion that substantial portions are derived

wholly or virtually verbatim from a party’s brief.    We note that

“substantial” conveys both qualitative and quantitative meaning.

Thus, an Article 66(c) error based on the copying of a party’s

brief may be rooted in the replication of certain important or

contested facts, crucial legal analysis, legal conclusions, or

some combination thereof, as well as the volume of material

copied.    Such judgments are case contextual; however, assuredly

an original opinion manifesting independent analysis negates

need for review for an Article 66(c) error based on the copying

of a party’s brief.

        The CCA’s opinion in this case replicates large portions of

the statement of facts, analysis, and conclusions of law from

the Government’s Answer.    On such a record we cannot

disaggregate the Government’s argument from the CCA’s review.

Therefore, we cannot determine that Appellant received the

“awesome, plenary, and de novo” review to which he was entitled

by law.    See Duncan, 38 M.J. at 479 (citing Cole, 31 M.J. at

270).    In short, the fact that Appellant received some of what

he was entitled to does not mean that he received all to which


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United States v. Jenkins, No. 03-0473/NA

he was entitled.    The lower court’s opinion indicates that he

did not.

        Article 66(c) review is a substantial right.   It follows

that in the absence of such a complete review, Appellant has

suffered material prejudice to a substantial right.



                               Decision

        The decision of the United States Navy-Marine Corps Court

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

returned to the Judge Advocate General of the Navy for remand to

that court for a new Article 66(c) review before a panel

comprised of judges who have not previously participated in this

case.




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