Opinion of the Court
Robert E. Quinn, Chief Judge:
This appeal brings up for review an important question of post-trial procedure. The accused was convicted of rape, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920, and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for twenty years. However, the convening authority approved only findings of guilty of assault with intent to commit rape, in violation of Article 134, Uniform Code, 10 USC § 934, and reduced the period of confinement to two years. At the same time he suspended the execution of the discharge. A board of review set aside his action because he had referred to matter outside the record of trial. The board of review noted that the extra-hearing matter induced the convening authority to disapprove the findings of guilty of the offense charged, but “reinforce [d] the . . . evidence that accused was guilty” of the lesser offense. It directed that the convening authority withdraw his action and forward the case to a different court-martial authority for a new review.
On the second review, the Staff Judge Advocate reasoned that the new reviewing authority “should not approve findings or sentence more severe than those approved” by the original convening authority. His reasoning was rejected by the reviewing authority. Without stating his reasons in a separate letter, as required by paragraph 85, Manual for Courts-Martial, United States, 1951, he affirmed the court-martial’s finding of rape. He also approved a sentence which did not provide for suspension of the discharge, and which included confinement at hard labor for five years. A board of review affirmed his action, but, in the exercise of its appellate power, reduced the confinement to two years. We granted review to consider whether the second action taken by the reviewing authority was legally correct.
Article 64 of the Uniform Code, 10 USC § 864, defines the power of the convening authority in reviewing a conviction. He can “approve only such findings of guilty, and the sentence . . . as he finds correct in law and fact and as he in his discretion determines should be approved.” (Emphasis sup[724]*724plied.) In analyzing the limits of this grant of power, we must distinguish between action approving a conviction and that which disapproves the results of the court-martial. As far as the former is concerned, the reviewing authority is not unrestrained. He cannot, for example, approve a conviction on the basis of evidence outside the record of trial, United States v Duffy, 3 USCMA 20, 11 CMR 20; nor can he approve the sentence on the basis of a predetermined and fixed policy. United States v Wise, 6 USCMA 472, 20 CMR 188. However, in disapproving a finding or a sentence, the convening authority is not confined to the record of trial. Instead, he can properly consider 'matter outside the record of proceedings in regard to the findings, United States v Massey, 5 USCMA 514, 18 CMR 138, and in connection with the sentence, United States v Lanford, 6 USCMA 371, 20 CMR 87. Whether in disapproving findings of guilty or a sentence, in whole or in part, he exercises his discretion wisely or ineptly cannot be questioned by a subsequent reviewing authority. As we said in United States v McDaniel, 7 USCMA 56, 58, 21 CMR 182, subsequent reviewing authorities are “limited by the convening authority’s action on the findings and the sentence.” Earlier, in United States v Massey, supra, page 520, we had occasion to consider the Congressional hearings on the subject, and we pointed out that the draftsmen of the Uniform Code intended to confer upon the convening authority the right to disapprove the accused’s conviction “for no reason at all.”
Although the principle is different in several states, in the Federal criminal procedure, if an accused ap- peals his conviction and obtains an order of reversal and rehearing from the appellate tribunal, at the rehearing he is subject to trial and punishment upon the same basis as though the first trial had not been had. The reason for the rule is explained in Trono v United States, 199 US 521, 533-534, 50 L ed 292, 26 S Ct 121, as follows:
“In our opinion the better doctrine is that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been. The accused, by his own action, has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place.
“. . . When, at his own request, he has obtained a new trial, he must take the burden with the benefit, and go back for a new trial of the whole case.” [See also Green v United States, 236 F 2d 708 (CA DC Cir) (1956); cert granted 352 US 915, 1 L ed2d 122, 77 S Ct 217 (1956).]
In the absence of any jurisdictional issue (see United States v Bancroft, 3 USCMA 3, 11 CMR 3; United States v Padilla, 1 USCMA 603, 5 CMR 31) the Trono rule does not apply in the military. Under the Uniform Code a court-martial is expressly bound by the findings and the sentence of the first trial. Article 63 (b), Uniform Code of Military Justice, 10 USC § 863. In United States v King, 5 USCMA 3, 8, 17 CMR 3, a majority of this Court held that the same restriction applies in regard to the convening authority’s action. As we have already noted, the convening authority has absolute discretion in approving or disapproving findings of guilty by the court-martial and in modifying the adjudged sentence. His action, therefore, fixes the limits of both the findings of guilty and the sentence in all subsequent proceedings in the case. This holding is consonant with two general principles applicable to military criminal law.
First, Congress intended that the review of the convening authority’s action by appellate bodies be for the benefit of the accused. In United States v Zimmerman, 2 USCMA 12, 6 CMR 12, we referred to this intention as follows:
[725]*725“In military judicial procedure automatic consideration by a board of review is provided. Uniform Code of Military Justice, Article 66; Manual for Courts-Martial, United States, 1951, paragraph 100. Since there is no provision for appeal to this intermediate tribunal by an accused, no notion of waiver, strictly speaking, is available to sustain ‘prosecution appeals’ — that is, certifications by a service Judge Advocate General. However, action by a board of review is always taken on behalf of an accused and in his interest. Literally he can never be prejudiced by this appellate review — for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. . . . Since prejudice is impossible under this procedure, the evils contemplated by and even prompting the guaranty against double jeopardy are entirely inoperative. The provision for automatic review simply constitutes the device adopted by Congress for insuring that no man may stand convicted on an inadequate record.” [Emphasis supplied.]
The second principle is that a well-settled administrative interpretation of an existing statute can be read into a re-enactment of that statute. See United States v Butts, 7 USCMA 472, 22 CMR 262.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
Robert E. Quinn, Chief Judge:
This appeal brings up for review an important question of post-trial procedure. The accused was convicted of rape, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920, and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for twenty years. However, the convening authority approved only findings of guilty of assault with intent to commit rape, in violation of Article 134, Uniform Code, 10 USC § 934, and reduced the period of confinement to two years. At the same time he suspended the execution of the discharge. A board of review set aside his action because he had referred to matter outside the record of trial. The board of review noted that the extra-hearing matter induced the convening authority to disapprove the findings of guilty of the offense charged, but “reinforce [d] the . . . evidence that accused was guilty” of the lesser offense. It directed that the convening authority withdraw his action and forward the case to a different court-martial authority for a new review.
On the second review, the Staff Judge Advocate reasoned that the new reviewing authority “should not approve findings or sentence more severe than those approved” by the original convening authority. His reasoning was rejected by the reviewing authority. Without stating his reasons in a separate letter, as required by paragraph 85, Manual for Courts-Martial, United States, 1951, he affirmed the court-martial’s finding of rape. He also approved a sentence which did not provide for suspension of the discharge, and which included confinement at hard labor for five years. A board of review affirmed his action, but, in the exercise of its appellate power, reduced the confinement to two years. We granted review to consider whether the second action taken by the reviewing authority was legally correct.
Article 64 of the Uniform Code, 10 USC § 864, defines the power of the convening authority in reviewing a conviction. He can “approve only such findings of guilty, and the sentence . . . as he finds correct in law and fact and as he in his discretion determines should be approved.” (Emphasis sup[724]*724plied.) In analyzing the limits of this grant of power, we must distinguish between action approving a conviction and that which disapproves the results of the court-martial. As far as the former is concerned, the reviewing authority is not unrestrained. He cannot, for example, approve a conviction on the basis of evidence outside the record of trial, United States v Duffy, 3 USCMA 20, 11 CMR 20; nor can he approve the sentence on the basis of a predetermined and fixed policy. United States v Wise, 6 USCMA 472, 20 CMR 188. However, in disapproving a finding or a sentence, the convening authority is not confined to the record of trial. Instead, he can properly consider 'matter outside the record of proceedings in regard to the findings, United States v Massey, 5 USCMA 514, 18 CMR 138, and in connection with the sentence, United States v Lanford, 6 USCMA 371, 20 CMR 87. Whether in disapproving findings of guilty or a sentence, in whole or in part, he exercises his discretion wisely or ineptly cannot be questioned by a subsequent reviewing authority. As we said in United States v McDaniel, 7 USCMA 56, 58, 21 CMR 182, subsequent reviewing authorities are “limited by the convening authority’s action on the findings and the sentence.” Earlier, in United States v Massey, supra, page 520, we had occasion to consider the Congressional hearings on the subject, and we pointed out that the draftsmen of the Uniform Code intended to confer upon the convening authority the right to disapprove the accused’s conviction “for no reason at all.”
Although the principle is different in several states, in the Federal criminal procedure, if an accused ap- peals his conviction and obtains an order of reversal and rehearing from the appellate tribunal, at the rehearing he is subject to trial and punishment upon the same basis as though the first trial had not been had. The reason for the rule is explained in Trono v United States, 199 US 521, 533-534, 50 L ed 292, 26 S Ct 121, as follows:
“In our opinion the better doctrine is that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been. The accused, by his own action, has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place.
“. . . When, at his own request, he has obtained a new trial, he must take the burden with the benefit, and go back for a new trial of the whole case.” [See also Green v United States, 236 F 2d 708 (CA DC Cir) (1956); cert granted 352 US 915, 1 L ed2d 122, 77 S Ct 217 (1956).]
In the absence of any jurisdictional issue (see United States v Bancroft, 3 USCMA 3, 11 CMR 3; United States v Padilla, 1 USCMA 603, 5 CMR 31) the Trono rule does not apply in the military. Under the Uniform Code a court-martial is expressly bound by the findings and the sentence of the first trial. Article 63 (b), Uniform Code of Military Justice, 10 USC § 863. In United States v King, 5 USCMA 3, 8, 17 CMR 3, a majority of this Court held that the same restriction applies in regard to the convening authority’s action. As we have already noted, the convening authority has absolute discretion in approving or disapproving findings of guilty by the court-martial and in modifying the adjudged sentence. His action, therefore, fixes the limits of both the findings of guilty and the sentence in all subsequent proceedings in the case. This holding is consonant with two general principles applicable to military criminal law.
First, Congress intended that the review of the convening authority’s action by appellate bodies be for the benefit of the accused. In United States v Zimmerman, 2 USCMA 12, 6 CMR 12, we referred to this intention as follows:
[725]*725“In military judicial procedure automatic consideration by a board of review is provided. Uniform Code of Military Justice, Article 66; Manual for Courts-Martial, United States, 1951, paragraph 100. Since there is no provision for appeal to this intermediate tribunal by an accused, no notion of waiver, strictly speaking, is available to sustain ‘prosecution appeals’ — that is, certifications by a service Judge Advocate General. However, action by a board of review is always taken on behalf of an accused and in his interest. Literally he can never be prejudiced by this appellate review — for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. . . . Since prejudice is impossible under this procedure, the evils contemplated by and even prompting the guaranty against double jeopardy are entirely inoperative. The provision for automatic review simply constitutes the device adopted by Congress for insuring that no man may stand convicted on an inadequate record.” [Emphasis supplied.]
The second principle is that a well-settled administrative interpretation of an existing statute can be read into a re-enactment of that statute. See United States v Butts, 7 USCMA 472, 22 CMR 262. Article 63(b) of the Uniform Code, which limits the court-martial’s authority on a rehearing, is phrased almost in identical language with Article of War 50-i and Article of War 52, its predecessors. These latter statutes were interpreted by service boards of review for almost fifteen years before the enactment of the Uniform Code. Illustrative of their uniform holdings is United States v Jeffcoat, 78 BR 291. The board of review there said:
“A sentence announced by a court does not become final until the reviewing authority has acted thereon. When he has taken action the term of confinement imposed is fixed. Remission, under the quoted provision of the Manual, approves only the sentence as reduced. When the reviewing authority took appropriate action and then forwarded the case under Article of War 50-i the only sentence acted upon by the Board of Review and The Judge Advocate General was the final sentence as approved and modified by the reviewing authority. The provisions of Article of War 50-i and paragraph 87b, MCM, 1928, do not operate to confer upon the reviewing authority the power to order a rehearing in which a more severe sentence may be imposed. Forwarding the case for review under Article of War 50-i is equivalent to publication and the sentence finally fixed by the reviewing authority may not, whatever course the proceedings thereafter take, be exceeded [citing authorities].”
All of us are agreed that the apparently increasing practice of ordering part of the record expunged is improper, and we strongly condemn it. In his separate opinion, Judge Latimer indicates that certain kinds of improper material can be ordered stricken from the record. Judge Ferguson inclines to the view that under no circumstances can there be physical deletion of any part of the record which is subject to appellate review. However, the approach which he and I take to this case makes it unnecessary to discuss the issue further. Unquestionably, the original convening authority’s action is part of the pro- ceedings subject to review by this Court. No one has denied or questioned the truth of the recitals in each of the two opinions by the board of review as to the contents of that action. We can accept these recitals as evidence of the initial action. In essence, they are no different from a description read into the record in place of a physical exhibit admitted in evidence. Accordingly, we need not defer our decision because of the absence of the document which the board of review had ordered removed from the record.
The decision of the board of review is reversed. [The findings of guilty and the sentence fare set aside. In aecord-[726]*726anee with our general practice of referring a case back to the level of proceedings at which the error occurred (United States v Clisson, 5 USCMA 277, 17 CMR 277), we return the record of trial to The Judge Advocate General for reference to another competent court-martial authority for proceedings consistent with this opinion.
Judge FERGUSON concurs.