United States v. Brundidge

20 M.J. 1028, 1985 CMR LEXIS 3216
CourtU.S. Army Court of Military Review
DecidedSeptember 26, 1985
DocketCM 443644
StatusPublished
Cited by6 cases

This text of 20 M.J. 1028 (United States v. Brundidge) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brundidge, 20 M.J. 1028, 1985 CMR LEXIS 3216 (usarmymilrev 1985).

Opinion

OPINION OF THE COURT ON REMAND

WOLD, Senior Judge:

In United States v. Brundidge, 17 M.J. 586 (A.C.M.R.1983), we affirmed the findings and the sentence in appellant’s case. In part, we said:

[W]e find the sentence appropriate. In reaching this conclusion we have not considered the extra-record sentence matters offered by appellant. Our jurisdiction as defined by Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c), does not extend to matters outside of the “entire record.” United States v. Fagnan, [30 C.M.R., 192 (C.M. A.1961) ].

17 M.J. at 588. Appellant thereafter petitioned the United States Court of Military Appeals, alleging, among other matters, that, “the Army Court of Military Review erred by declining to consider extra-record matters which demonstrated the excessiveness of the adjudged sentence.” Having granted appellant’s petition for review, the Court of Military Appeals then remanded the quoted issue to this court. United States v. Brundidge, 18 M.J. 12 (C.M.A. 1984). We adhere to our original holding and reaffirm appellant’s sentence.

The extra-record matter at issue was presented in appellant’s original brief to this court as follows:

The most devastating aspect of appellant’s conviction occurred shortly after his release from confinement and placement on excess leave status.

Article 66(c), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 866(c), provides that a Court of Military Review, “may affirm ... 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.” (emphasis added). In United States v. Fagnan, the Court of Military Appeals said:

We hold, therefore, that a board of review is limited in its consideration of information relating to the appropriateness of sentence to matters included in “the entire record.” That phrase encompasses the transcript and the allied papers, as well as any appellate brief prepared pursuant to the terms of [UCMJ], Article 38. United States v. Simmons, [6 C.M.R. 105 (C.M.A.1952) ]; United States v. Lanford, [20 C.M.R. 87 (C.M.A. 1955)]. Beyond these limits, the board of review may not go. Accordingly, the board here properly refused to consider, on the question of the appropriateness of accused’s sentence, the [post-trial] psychiatric report and letter regarding his good conduct in post-trial confinement.

30 C.M.R. at 195.* 1 As appellant points out in his brief on remand, it is because of this limitation to “the entire record” that the appellate courts, when deciding sentence appropriateness, have refused to consider an appellant’s post-trial conduct subsequent to the convening authority’s initial action. See United States v. Hoard, 12 M.J. 563 (A.C.M.R.1981), pet. denied, 13 M.J. 31 (C.M.A.1982); United States v. Castleman, 10 M.J. 750 (A.F.C.M.R.1981) (en banc).

Appellant, however, argues that, “[t]he Courts of Review, with the sanction of [the Court of Military Appeals], have chosen in certain instances, in the interest of justice and fairness to an appellant, to ignore the limitations imposed by Article 66, UCMJ.” As authority for this remarkable statement, appellant cites the line of cases which has determined that a Court of Military Review may take judicial notice of sentences in closely related cases when considering sentence appropriateness. See, e.g., United States v. Ballard, 20 M.J. 282 (C.M.A.1985); United States v. Snelling, 14 M.J. 267 (C.M.A.1982); United States v. Olinger, 12 M.J. 458 (C.M.A.1982). There are two things which must be said in response.

First, there is a class of information about how things generally work or happen — in a sense, background information— which in another context has come to be [1030]*1030called “legislative facts.” See, e.g., Analysis of the 1980 Amendments to the Manual for Courts-Martial, App. 22, Sec. II (Rule 201), Manual for Courts-Martial, United States, 1984; 2 Davis, Administrative Law Treatise 353 (1958); Note, Judicial Notice: Rule 201 of the Federal Rules of Evidence, 28 U.Fla.L.Rev. 723 (1976). This kind of information is so named because it is the sort of information which legislators find relevant and useful in framing laws of general application. Of course, the use of legislative facts is not confined to legislatures; courts frequently use them as well. Legislative facts are to be contrasted with adjudicative facts, in that the latter are facts which are relevant and helpful in deciding a specific case rather than in promulgating general principles. Ballard stands for the proposition that a Court of Military Review must “know something about the range of sentences typically adjudged for certain offenses”2 — legislative facts — and that the court may, in its discretion, choose to supplement its own “accumulated knowledge” by accepting or noticing evidence about sentences meted out in particular individual cases as another source of such legislative facts. This principle does nothing to advance appellant’s argument that we should consider the extra-record evidence of adjudicative facts which he has offered in the case at bar.

Second, Snelling and Olinger stand for the proposition that where “closely related” cases such as accomplices are involved, “the sentence adjudged in the earlier case must be considered [by the Court of Military Review] in determining an ‘appropriate’ sentence.” United States v. Ballard, 20 M.J. at 286. Appellant concludes from this that Article 66(c) has been emasculated and that the Courts of Military Review may therefore consider any extra-record material at all on the question of sentence appropriateness, subject only to the qualification that the court murmur over the evidence the incantation that it is being considered “in the interests of justice.” This approach does not strike us as sound statutory construction or responsible interpretation of precedent.

Appellant’s other argument relies on United States v. Grostefon, 12 M.J. 431 (C.M.A.1981).

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Bluebook (online)
20 M.J. 1028, 1985 CMR LEXIS 3216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brundidge-usarmymilrev-1985.