                                     IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                            James A. SILLS, Colonel
                           U.S. Air Force, Appellant

                                     No. 02-0048
                              Crim. App. No. 34323

                United States Court of Appeals for the Armed Forces

                              Decided January 15, 2002




                                        Counsel

For Appellant: Lieutenant Colonel Beverly B. Knott, Lieutenant Colonel
     Timothy W. Murphy, and Captain Karen L. Hecker (on brief).



For Appellee:     Colonel Anthony P. Dattilo and Major Lance B. Sigmon (on
     brief).




Military Judge:     Bruce T. Brown




            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Sills, No. 02-0048/AF


   PER CURIAM:

    In its review of appellant's case under Article 66, Uniform

Code of Military Justice, 10 USC § 866, the Court of Criminal

Appeals set aside one of the specifications of which appellant

was convicted.   United States v. Sills, 56 MJ 556, 563, 572

(A.F.Ct.Crim.App. 2001).   The court then turned to consider

whether it "may reassess the sentence, or whether it must order

a rehearing on the sentence."   Id. at 568.   Citing Jackson v.

Taylor, 353 U.S. 569 (1957), the court concluded that it lacked

the authority to order a rehearing on sentence.    Id. at 571.

The court, however, did not take into account this Court's

contrary, controlling interpretation of Jackson.

     Shortly after the Jackson decision was issued, the Judge

Advocate General of the Army certified to our Court the question

of whether the intermediate courts were authorized under Article

66 to order a sentence-only rehearing.   United States v. Miller,

10 USCMA 296, 297, 27 CMR 370, 371 (1959).    We held that the

intermediate courts are authorized to order sentence-only

rehearings, concluding that Jackson was not to the contrary.

Regarding Jackson, we said:

          [T]he Supreme Court was merely pointing out
          some of the difficulties which prompted
          Congress to authorize reassessment of the
          sentence by a board of review [as the Courts
          of Criminal Appeals then were denominated]
          and that it was not intending to say the
          power to order the limited rehearing was not


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United States v. Sills, No. 02-0048/AF


            impliedly granted by Articles 66 and 67 of
            the Code. Accordingly, we reaffirm our
            previous holdings that a case may be
            returned to a court-martial for rehearing on
            sentence only.

Id. at 299, 27 CMR at 373.

     For over forty years since that decision was issued, the

intermediate courts routinely have ordered rehearings on

sentence.    As noted in the Drafters’ Analysis of the 1969

Manual, the rules were revised at that time to provide specific

procedures for the various types of rehearings, including

rehearings on sentence, “because rehearings on the sentence have

been frequent since the publication of the former Manual in

1951.”   Para. 81b, Analysis of Contents, Manual for Courts-

Martial, United States, 1969, Revised Edition, Dept. of the Army

Pamphlet 27-2 at 15-1 (July 1970).     The President has continued

to set forth rules governing rehearings on sentence in the

Manual, including the power of the Courts of Criminal Appeals to

order such rehearings.    See RCM 810(a)(2) and 1203(c)(2), Manual

for Courts-Martial, United States (2000 ed.).     Our decisions on

sentence rehearings have reaffirmed the power of the Courts of

Criminal Appeals to order rehearings on sentence, taking into

account both Jackson and Miller.      See, e.g., United States v.

Boone, 49 MJ 187, 195 (1998) (opinion by Ripple, Circuit Judge,

sitting by designation).




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     Although not necessary to our decision here, we note that

Congress revised the statutory authority for rehearings

subsequent to Miller, but it did not seek to limit the authority

of the intermediate courts to order sentence-only rehearings.

See Military Justice Act of 1983, Pub. L. No. 98-209, § 5(d), 97

Stat. 1393, 1398 (art. 63, UCMJ); see also id. at § 7(e), 97

Stat. at 1402 (art. 69, UCMJ) (extending the power to order

rehearings to the Judge Advocates General); S. Rep. No. 98-53,

at 8, 29 (1983) (describing the power of the Judge Advocates

General under the legislation as similar to the powers exercised

by the intermediate courts).

     The court below also addressed the issue of factual

sufficiency under Article 66.   56 MJ at 562-64.   The court cited

the standard set forth for factual-sufficiency review in United

States v. Turner, 25 MJ 324, 325 (CMA 1987) (proof beyond a

reasonable doubt), but it also took note of the decision of

another panel of the Air Force court in United States v.

Washington, 54 MJ 936, 941 (A.F.Ct.Crim.App. 2001), which

concluded that factual sufficiency should be considered under a

preponderance-of-the-evidence standard.   56 MJ at 562; see also

United States v. Nazario, 56 MJ 572 (A.F.Ct.Crim.App. 2001).

Although the Courts of Criminal Appeals, and their predecessor

courts (the Boards of Review and Courts of Military Review),

historically have conducted their Article 66 de novo review of


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United States v. Sills, No. 02-0048/AF


the facts under the traditional criminal law standard of proof

beyond a reasonable doubt, the lower court in Washington and

Nazario has asserted that an excerpt from Article 66's

legislative history compels a different result.

     The court in Nazario relied on the commentary submitted by

the Department of Defense during the congressional hearings on

the UCMJ, which was adopted in the committee reports.    56 MJ at

573-74.   The commentary and committee reports used identical

language to note that an intermediate court “shall affirm a

finding of guilty . . . if it determines that the finding

conforms to the weight of the evidence . . . .”    Hearings on

H.R. 2498 Before a Subcomm. of the Comm. on Armed Services, 81st

Cong., 1st Sess. 1187 (1949) [hereafter cited as House

Hearings]; S. Rep. No. 81-486, at 28 (1949); H.R. Rep. No. 81-

491, at 31-32 (1949).    The court in Nazario concluded that the

term “weight of the evidence” should be interpreted to mean

“preponderance of the evidence,” and that the Boards of Review

that had applied the “beyond a reasonable doubt” standard after

the UCMJ was enacted had cast the legislative history “into the

dustbin of history.”    56 MJ at 574.   The court erroneously cited

the discussion in the House Hearings at 609, 611, and 612

pertaining to the Judicial Council, which would not have had the

power to conduct a de novo review for factual sufficiency

because it was limited to questions of law.


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     In Washington, 54 MJ at 940-41, the lower court reached a

similar conclusion concerning the meaning of “weight of the

evidence” by citing a civil case decided in 1974, see Montgomery

Ward & Co. v. United States, 61 C.C.P.A. 101, 499 F.2d 1283

(C.C.P.A. 1974), and a definition in Black’s Law Dictionary at

1594 (6th ed. 1990).   Each of these sources reflects use of the

term “weight of the evidence” in the context of a non-criminal

proceeding.    Neither demonstrates that Congress sought to

supplant the traditional criminal law standard with a civil law

standard when it enacted Article 66 in 1950.    There is nothing

in the legislative history cited by the court below

demonstrating that Congress rejected the trial-level standard of

proof beyond a reasonable doubt for purposes of Article 66 de

novo review.

     The Boards of Review and their successors did not cast

aside the legislative history but, rather, applied the

traditional criminal law standard to fulfill congressional

intent that the intermediate courts conduct de novo review of

factual sufficiency.    In considering whether to overrule our

decision in Turner that embodied these precedents, we are

mindful of the Supreme Court’s guidance in Payne v. Tennessee,

501 U.S. 808, 827 (1991), regarding the doctrine of stare

decisis:   adherence to precedent “is the preferred course

because it promotes the evenhanded, predictable, and consistent


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United States v. Sills, No. 02-0048/AF


development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity

of the judicial process.”    It is a principle of decisionmaking,

not a rule, and need not be followed when the precedent at issue

is “unworkable or . . . badly reasoned.”    Id.

     The court below has not demonstrated that Turner is

unworkable, nor does the excerpt from the legislative history

cited by the court demonstrate that it is badly reasoned.

Accordingly, we decline to overturn Turner.    Although the

opinion of the court below in the present case appears to rely

on Turner, its decision is not free from ambiguity, and it

should be clarified on remand.

     The decision of the United States Air Force Court of

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

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

that court for further review consistent with this opinion and

our order granting the petition for review.    ___ MJ ___ (Daily

Journal   Jan. 15, 2002).   Thereafter, Article 67, UCMJ, 10 USC

§ 867, shall apply.




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