UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                       WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                       Staff Sergeant KE’AIRA S. CONLEY
                          United States Army, Appellant

                                  ARMY 20170560

                              Headquarters, I Corps
               Sean Mangan and Lanny J. Acosta, Jr., Military Judges
                 Colonel Steven C. Henricks, Staff Judge Advocate

For Appellant: Colonel Elizabeth G. Marotta, JA; Major Julie L. Borchers, JA;
Captain Steven J. Dray, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Catharine M. Parnell, JA (on brief).

                                  28 February 2019
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

WOLFE, Senior Judge:

        Staff Sergeant (SSG) Ke’aira S. Conley had sex multiple times with a military
prisoner while she was assigned as staff to the Northwest Joint Regional
Correctional Facility. This and other conduct resulted in several charges. For the
first time, on appeal, SSG Conley complains that those charges were unreasonably
multiplied. 1



1
 A military judge sitting as a general court-martial convicted appellant, pursuant to
her pleas, of two specifications of failing to obey a lawful order and one
specification of adultery in violation of Articles 92 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 934 (UCMJ). The military judge sentenced
appellant to be discharged from the service with a bad-conduct discharge, to be
confined for four months, and to be reduced to the grade of E-1. The convening
authority approved the sentence as adjudged.
CONLEY—ARMY 20170560

       Appellant acknowledges that her guilty plea waived a claim that the charges
were unreasonably multiplied. Accordingly, appellant asks that we exercise our
unique authority under Article 66, UCMJ, to notice forfeited and waived claims of
error.

        We first consider whether an appellant is permitted to ask this court to grant
relief for a waived issue given our superior court’s decision in United States v.
Chin. 2 We conclude that this case is distinguishable from Chin. Second, we
consider the framework for evaluating whether we should notice a claim of waived
error. We identify some of the circumstances that would weigh in favor of providing
relief for a waived claim of error. After identifying the framework with which to
consider the problem, we decide to leave appellant’s waiver intact.

                                   BACKGROUND

       The central facts of the case were agreed to by the parties as part of
appellant’s guilty plea. Staff Sergeant Conley was a culinary supervisor in the
confinement facility’s mess. Her responsibilities included ensuring good order and
discipline of both the soldiers and prisoners whom she supervised. Beginning in
April of 2016, appellant began having an overly-familiar relationship with Prisoner
AS. They first spent an inordinate amount of time together in the kitchen, then
began having sexual conversations, and then, by May of 2016, they made multiple
regular trips to a nearby bathroom to have sex. Staff Sergeant Conley and Prisoner
AS would also text each other using a cell phone that had been illegally brought into
the confinement facility.

       For these acts, SSG Conley was separately charged and pleaded guilty to: (1)
violating orders by fraternizing with Prisoner AS; (2) violating orders by wrongfully
corresponding with Prisoner AS; and (3) for having an adulterous sexual relationship
with Prisoner AS while she was married to another person.

                              LAW AND DISCUSSION

       On appeal, SSG Conley complains that the specifications of violating orders
by fraternizing and corresponding with Prisoner AS are unreasonably multiplied.
The two specifications violated different paragraphs of the same order. Painting
with a broad brush, we agree with appellant that wrongfully corresponding with a
prisoner is a type of fraternization.

      In United States v. Quiroz, our superior court (CAAF) outlined the test for
determining when one specification is unreasonably multiplied with another

2
    75 M.J. 220 (C.A.A.F. 2016).




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CONLEY—ARMY 20170560

specification. 55 M.J. 334 (C.A.A.F. 2001). However, as appellant admits, any
claim that the charges were unreasonably multiplied was waived when appellant
entered an unconditional guilty plea to both offenses. See United States v. Hardy,
77 M.J. 438, 440-42 (C.A.A.F. 2018).

      A valid waiver extinguishes the claim of legal error. United States v. Ahern,
76 M.J. 194, 197-98 (C.A.A.F. 2017). As such, a case becomes “correct in law” for
purposes of our Article 66 review when a valid waiver applies to what would
otherwise be prejudicial error. 3

        Is appellant permitted to raise a waived claim of UMC to this court?

       In her brief, appellant specifically asks this court to use our authority under
Article 66 to notice appellant’s waiver and answer the question of whether the
charges are unreasonably multiplied. Indeed, we have specifically stated that we
would find such arguments helpful when conducting our Article 66 review. United
States v. Clark, ARMY 20160121, 2017 CCA LEXIS 275, at *3 n.2 (Army Ct. Crim.
App. 25 Apr. 2017) (mem. op.). However, our guidance may be in conflict with our
superior court’s decision in Chin. Therefore, the first question we must address is
whether Chin specifically bars appellant from asking for such relief.

       In Chin, our superior court addressed whether a Court of Criminal Appeals
(CCA) had the authority to grant relief for UMC when an appellant pleaded guilty
and specifically agreed to “waive all waivable motions.” 75 M.J. at 221. The court
held “the CCA’s action [granting relief] was well within the limitations of its
[review].” Id. at 224. In explaining the reach of waiver in an accused’s guilty plea,
however, the court said:

             Contrary to the Government’s claims of Armageddon,
             there is nothing new about today’s decision, and it does
             not mean that a “waive all waivable motions” provision or
             unconditional guilty plea is without meaning or effect.
             Waiver at the trial level continues to preclude an
             appellant from raising the issue before either the CCA or
             this Court.



3
 The same reasoning applies to forfeited error where an appellant has not met his
burden of establishing the error was clear and obvious and materially prejudices his
substantial rights (i.e., plain error). See United States v. Keller, ARMY 20150619,
2018 CCA LEXIS 463, at *7 n.3 (Army Ct. Crim. App. 26 Sep. 2018) (mem. op.),
pet. denied _M.J._ (C.A.A.F. 26 Feb. 2019).




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CONLEY—ARMY 20170560

Id. at 223 (emphasis in original).

       The last sentence quoted above, especially when read alone, would appear to
prohibit exactly what appellant has done here: requesting relief for an issue waived
at a guilty plea. 4 Indeed, both cases involve the same issue of UMC.

       We see Chin as distinguishable, however, as the accused in Chin had doubly
waived relief for UMC. First, in Chin, the accused pleaded guilty which, standing
alone, waived any claim of UMC. See Hardy, 77 M.J. at 440-42. Second, and more
important to the CAAF’s analysis, the accused in Chin specifically agreed to “waive
all waivable motions.” 75 M.J. at 221. The CAAF’s decision in Chin focused
almost entirely on the effect of this pretrial agreement term. Id. at 222-24. We
understand the CAAF’s holding in the case to be that a pretrial agreement term can
bind the parties, but the parties’ agreement cannot bind the scope of the CCA


4
  Although we read Chin narrowly, we would suggest to our superior court that even
this narrow interpretation be reconsidered for several reasons. First, an appellant’s
perspective on how this court should exercise our Article 66 authority in resolving
waived issues helps us identify a problem that we might otherwise miss. As our
superior court has stated, “even the most conscientious counsel and judges will
occasionally overlook an error . . . for that reason, any assistance in the
identification of issues can further the proper administration of military justice.”
United States v. Grostefon, 12 M.J. 431, 436 (C.M.A. 1982). Second, we benefit
from the parties’ adversarial testing of the record to aid us seeing things in different
lights. Third, the bar is one-sided, as the government is not prohibited from arguing
that the findings “should be approved.” Fourth, when we sua sponte grant an
appellant relief, (as Chin envisions), we risk – especially if a rehearing is involved –
giving an appellant relief he does not want. In at least one instance, an accused has
requested additional relief after we authorized an unwanted rehearing that caused
him to be returned to full duty status and lose his civilian employment.
Additionally, we respectfully see Congress as having delegated rule-making
authority for the CCAs to The Judge Advocates General. UCMJ, art. 66.

But mostly, we would suggest revisiting Chin, or at least correcting our
understanding of Chin, in light of the CAAF’s interpretation of this court’s authority
in United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010). Under Nerad, we may not
exercise our “should be approved” authority as an act of clemency. 69 M.J. at 145-
47. As Nerad makes clear, we are a court of law (not equity) and our power is
limited to exercising legal standards. Id. If the central holdings of Chin and Nerad
are correct, and we must consider whether findings that are correct in law should
nonetheless be set aside based on legal standards, we would benefit from the parties’
briefs on the issue.




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CONLEY—ARMY 20170560

review. An accused who agrees to waive UMC as part of a pretrial agreement may
remain bound by the agreement, but the CCA must continue to fulfill its statutory
duty to approve only those findings that “should be approved.”

       In this case, appellant did plead guilty. And the guilty plea did constitute
waiver of the UMC claim. But, in contrast to Chin, appellant did not agree to waive
a claim of UMC or agree to waive all waivable motions. Thus, while appellant is
bound by the pretrial agreement, we do not see this agreement as preventing
appellant from advocating that we set aside appellant’s waiver.

        Put differently, appellant’s guilty plea constituted waiver and therefore
extinguished as a matter of law any claim that her charges are unreasonably
multiplied. However, notwithstanding the lack of legal error, it remains for this
court to determine whether the findings “should be approved” under Article 66.
Unlike in Chin, nothing in the plea agreement prohibits appellant from providing
this court with appellant’s view on whether we should approve the findings of
guilty.

       As we find appellant was not prohibited from asking us to notice the waived
error, we turn to whether noticing the error is appropriate. When determining
whether to notice error, we must first review the entire record. United States v.
Schweitzer, 68 M.J. 133, 139 (C.A.A.F. 2009) (“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”) (citing United States v. Tardif, 57 M.J.
219, 224 (C.A.A.F. 2002)) (quoting United States v. Collazo, 53 M.J. 721, 727
(Army Ct. Crim. App. 2000)). This statutory requirement allows us to, in our
discretion, treat a waived or forfeited claim as if it had been preserved at trial. See
United States v. Britton, 26 M.J. 24, 27 (C.M.A. 1988) (“while it is the general rule
that failure to make a timely motion at trial may estop one from raising the issue on
appeal, failure to raise the issue does not preclude the Court of Military Review in
the exercise of its powers from granting relief”) (emphasis in original).

      This case presents as good an opportunity as any to explain the framework for
how we approach and analyze whether to exercise our broad authority under Article
66, UCMJ.

                                The third of three tests

       Under Article 66, UCMJ, this court must determine whether the findings and
sentence of a case are: (1) correct in law; (2) correct in fact; and (3) should be
approved. As a general practice, we reach the issue of whether the findings and
sentence “should be approved” only after we first determine that the findings and
sentence are correct in law and fact. UCMJ, art. 66. There are a few reasons to take
this approach.



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CONLEY—ARMY 20170560

       First, anytime this court sets aside the findings or sentence, we then have to
determine whether we will return the case to a convening authority for a rehearing.
When a specification is legally or factually insufficient, however, a rehearing is
barred. 5 If we got the order wrong, (and first determined whether a finding should
be approved before addressing whether the finding is legally and factually
sufficient), we may erroneously order a rehearing in a circumstance where a
rehearing should have been barred.

      Second, by addressing errors of law first, we ensure that our reasoning is
transparent and subject to appropriate scrutiny. Our superior court is a court of law.
See UCMJ, art. 67(c). We muddy the scrutiny of our reasoning when we decide a
case based on our unique Article 66 authority under circumstances where we would
have reached the same result as a matter of law.

      Third, by parsing our duties under Article 66, and specifically stating which
authority is leading us to a particular holding, we provide more stable case law on
which future litigants can rely.




5
  See U.S. Const. amend. V, cl. 2 (“[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.”); UCMJ, art. 66 (“If the Court of
Criminal Appeals sets aside the findings and sentence, it may, except where the
setting aside is based on lack of sufficient evidence in the record to support the
findings, order a rehearing.”); see also United States v. Scott, 437 U.S. 82, 90-91
(1978) (“The successful appeal of a judgment of conviction, on any ground other
than the insufficiency of the evidence to support the verdict […] poses no bar to
further prosecution on the same charge.”) (internal citation omitted).

The test for legal sufficiency is “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder found all the essential elements
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324 (C.M.A. 1987).
In applying this test, “we are bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001) (citations omitted).

The test for factual sufficiency is whether “after weighing the evidence in the record
of trial and making allowances for not having personally observed the witness, the
[court of appeals is itself] convinced of the accused’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; UCMJ, art. 66.




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CONLEY—ARMY 20170560

                               A unique military authority

       While this court’s exercise of our Article 66 “should be approved” authority is
not limited to a certain class of cases, there are types of issues that are more likely
to call out for the exercise of this unique authority than others.

       Since the establishment of the UCMJ, the evolution of military justice has
often seen the adaptation of civilian practices when not inconsistent with the
purpose of military justice. But, while courts-martial have - more and more - come
to resemble their civilian counterparts, there remain many significant differences.
Panel member selection and voting remains substantially different than civilian
juries. See UCMJ, art. 25 (who may serve on courts-martial); UCMJ, art. 51 (voting
and rulings). Courts-martial are often conducted in remote locations 6 and the
accused may not have the same access to familial support that he would have had in
his home town. Military superiors have broad authority over persons subject to their
orders and there is the persistent danger that this authority may be misused in a
manner that undermines a fair process. The President has specifically exempted
certain Federal Rules of Evidence from applying to courts-martial. 7 And finally,
military members are subject to a range of criminal sanctions for which there is no
civilian counterpart. 8

       In short, while there are both structural and procedural safeguards that are
designed to ensure that the court-martial is a fair and just proceeding at the trial
level, the broad authority given to a CCA under Article 66 sits as a safety valve of
last resort. That is why our superior court has described our authority as “something
like the proverbial 800-pound gorilla when it comes to their ability to protect an
accused.” United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993). Indeed, a
“clearer carte blanche to do justice would be difficult to express.” United States v.
Claxton, 32 M.J. 159, 162 (C.M.A. 1991) (italics in original).




6
  Unlike federal civilian criminal proceedings, courts-martial must provide
expeditious process for expeditionary units. The military justice system ensures
good order and discipline worldwide. As Article 5, UCMJ states, in its entirety,
“This chapter applies in all places.” To this extent, military judges move from
installation to installation to try cases before panel members who come and go, as do
most, if not all, military trial participants.
7
    Compare Military Rule of Evidence 704 with Federal Rule of Evidence 704(b).
8
    See, e.g., Articles 86 and 87, UCMJ.




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CONLEY—ARMY 20170560

       So while our authority under Article 66 is in no way limited to certain issues,
on a practical level the exercise of this unique power is more likely to be found in
certain military circumstances which – while not technically amounting to legal
error – have disadvantaged the accused in a manner that the CCA determines needs
correction or has resulted in a court-martial where the perception of unfairness in the
trial may have the actual effect of undermining good order and discipline. If on a
practical level we are more likely to exercise our “should be approved” power in
circumstances that are, at the source, born from uniquely military origins, we would
benefit from the parties briefing the issue with this in mind.

                      Noticing waived issues in this guilty plea

      With due consideration of the framework complete, we now turn to whether
we should use our authority under Article 66 to notice the waived issue of
unreasonable multiplication of charges in this case. For the reasons outlined below,
we should not.

      Nearly all pretrial agreements involve compromise by both the accused and
the government. See generally Rule for Courts-Martial (R.C.M.) 705. The
government usually agrees to reduce the sentence exposure of the accused and often
agrees to dismiss some of the charges that the accused is facing. The accused gives
up, most importantly, the obligation for the government to prove guilt.

       In this case, SSG Conley agreed to plead guilty to three violations of the
UCMJ. In exchange for this concession, the government agreed to dismiss two
specifications that alleged SSG Conley had violated an order by providing Prisoner
AS a cell phone and then lying about it to investigators. Had they been proven, the
dismissed specifications would have increased the maximum confinement faced by
appellant by an additional seven years. Additionally, for appellant’s substantial and
serious misconduct, the government agreed to significantly reduce the maximum
possible sentence to only one year of confinement.

       If we were to disrupt the balance struck by the parties in this case, there is
some risk we would undermine confidence that in future pretrial agreements the
terms will be viewed as binding. While the risk may be small, in the future the
government may not so willingly enter into pretrial agreements – or may seek the
extraction of greater concessions. To set aside a finding that is correct in law, and
which appellant specifically agreed to plead guilty to, may be seen as this court
effectively disrupting the balance struck by the parties before trial.

      On the other hand, the pretrial agreement in this case specifically did not
include an agreement to waive UMC or require appellant to waive all waivable
motions. The CAAF in Chin specifically stated a CCA could give weight to an
accused’s decision to waive all motions when determining whether to notice the



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CONLEY—ARMY 20170560

waiver. 75 M.J. at 223. Given the absence of a specific waiver provision here, and
given that the term is common in pretrial agreements, one could infer an intent by
the parties to let this court resolve the issue on appeal unencumbered by the pretrial
agreement. Here, appellant and the government specifically negotiated that
appellant would waive a suppression motion but left the agreement silent as to what
other issues were waived by appellant’s plea.

       But, in the end, after reviewing the entire record, we conclude that this case
does not call out for relief. We find, for example, no evidence of impropriety,
government overreach or excess, or other matter that might weigh in favor of
noticing a waived issue. In light of appellant’s serious crimes, we view the terms of
the agreement to be generous rather than onerous.

        Certainly, there are instances where disrupting a negotiated plea is warranted
and where noticing a waived issue is an appropriate remedy. There will be cases
where individual judges may determine that noticing waived error is necessary, 9 but
this is not such a case.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of Court
                                           Clerk of Court




9
  See, e.g., United States v. Clark, ARMY 20140252, 2016 CCA LEXIS 363, *13
(Army Ct. Crim. App. 31 May 2016) (mem. op.) (Haight, S.J., dissenting) (“I find it
difficult to see how this court can say that under the circumstances found in this case
that multiple convictions ‘should be approved’ when binding precedent
unequivocally informs us that separate findings of guilty ‘should not be’ approved.”)
(quoting UCMJ, art. 66) (citing United States v. Flynn, 28 M.J. 218 (C.M.A. 1989);
United States v. Clarke, 74 M.J. 627 (Army Ct. Crim. App. 2015)).




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