Al Bahlul v. United States

374 F.Supp.3d 1250

Ali Hamza Ahmad Suliman AL BAHLUL, Appellant

v.UNITED STATES, Appellee

CMCR 16-002

United States Court of Military Commission Review.

March 21, 2019

On the briefs for appellant were Major Todd Pierce, JA, U.S. Army (Ret.), Senior Fellow Univ. of Minnesota Human Rights Center, Michel Paradis, and Mary R. McCormick.

On the briefs for appellee were Brigadier General Mark S. Martins, U.S. Army, and Michael J. O'Sullivan.

BEFORE THE COURT Burton, Chief Judge; Silliman, Deputy Chief Judge; and Pollard, Hutchison, and Fulton Appellate Judges

PUBLISHED EN BANC OPINION OF THE COURT

Opinion filed by Hutchison, Judge:

This case is before us on remand from the Court of Appeals for the District of Columbia Circuit (D.C. Circuit). That Court returned this case to us after affirming appellant Al Bahlul's conspiracy to commit war crimes conviction,¹ and vacating his convictions for solicitation and providing material support for terrorism. Al Bahlul v. United States , 767 F.3d 1, 31 (D.C. Cir. 2014) (en banc) ( Bahlul II ), aff'd en banc per curiam , 840 F.3d 757, 759 (D.C. Cir. 2016) ( Bahlul III ), cert. denied , ––– U.S. ––––, 138 S.Ct. 313, 199 L.Ed.2d 232 (2017).² The D.C. Circuit's mandate directs us "to determine the effect, if any, of the two vacaturs on sentencing." Id.

Before us, the appellant argues that his sentence is inappropriate for his remaining offense, and that we cannot be confident that, but for the error affecting his case, he would have received a sentence of confinement for life. He also raises two other issues not directly related to the D.C. Circuit's mandate: First, he challenges his remaining conviction for conspiracy to commit war crimes. He asserts that the vacatur of the two other charges casts doubt on the legality of the remaining charge, which survived the D.C. Circuit's scrutiny only because that court found that the appellant's ex post facto challenge had been forfeited. On remand, the appellant urges that our more generous scope of review allows us to perform a de novo review now, even though the D.C. Circuit has affirmed the conviction. The appellant's second new issue is a motion to dismiss his case altogether for lack of subject-matter jurisdiction. He claims that his commission lacked jurisdiction because the Convening Authority's appointment was statutorily and constitutionally improper, and that she was therefore without any authority to convene a military commission.

The government argues that we may reassess the appellant's sentence and that we should affirm the appellant's sentence to confinement for life. The government further argues that the appellant is not entitled to a de novo review of his remaining conviction, and that we should not now consider his newest challenge to the Convening Authority's appointment contending it is not jurisdictional.

Our task, then, is first to determine what arguments we may properly consider given the procedural posture of the case. We conclude that a de novo review of the appellant's remaining conviction is beyond the scope of our review on remand. We further conclude that we should consider the appellant's jurisdictional claim and his argument that his sentence is inappropriate to his remaining offense. We decide both of these issues in the government's favor.

I. Scope of review on remand

The D.C. Circuit directed us to determine the effect, if any, of the two vacaturs on the appellant's sentence. Bahlul II , 767 F.3d at 31. The two additional issues raised by the appellant—the request for a de novo review of the remaining conviction and the jurisdictional question—are not plainly within the scope of our review on remand.

A. De novo review of remaining conviction

We first ask if a de novo review of the appellant's remaining conviction is within the scope of our review. We approach this question with two closely-related concepts: the law-of-the-case doctrine and the mandate rule.

The " ‘law-of-the-case’ doctrine refers to a family of rules embodying the general concept that a court involved in later phases of [litigation] should not reopen questions decided ... by that court or a higher one in earlier phases." Crocker v. Piedmont Aviation , 49 F.3d 735, 739 (D.C. Cir. 1995). Our superior court further explained that:

When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court. The Supreme Court has instructed the lower courts to be loathe to reconsider issues already decided in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.

LaShawn A. v. Barry , 87 F.3d 1389, 1393 (D.C. Cir. 1996) ( LaShawn II ) (en banc) (internal citations and quotation marks omitted).

The "mandate rule is [simply] a ‘more powerful version’ of the law-of-the-case doctrine." Indep. Petroleum Ass'n v. Babbitt , 235 F.3d 588, 597 (D.C. Cir. 2001) (quoting LaShawn II , 87 F.3d at 1393 ). Under the mandate rule, "an inferior court has no power or authority to deviate from the mandate issued by [a superior] appellate court." Briggs v. Penn. R.R. , 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948) ; see also United States v. Kpodi , 888 F.3d 486, 491 (D.C. Cir. 2018) ("A district court commits legal error and therefore abuses its discretion when it fails to abide by ... the mandate rule."). "In long-running litigation like this, [we] are especially constrained because [we] may not ‘do anything which is contrary to the letter or spirit of the mandate.’ " Morley v. CIA , 894 F.3d 389, 401 (D.C. Cir. 2018) (citation omitted).

"The mandate rule has two components—the limited remand rule, which arises from action by an appellate court, and the waiver rule, which arises from action (or inaction) by one of the parties." United States v. O'Dell , 320 F.3d 674, 679 (6th Cir. 2003). Thus, the mandate rule places "two major limitations" on the scope of a remand: "any issue that could have been but was not raised on appeal is waived and thus not remanded," and "any issue conclusively decided by [the appellate court] is not remanded." United States v. Husband , 312 F.3d 247, 250-51 (7th Cir. 2002). The rule, therefore, "forecloses relitigation of issues expressly or impliedly decided by the appellate court." United States v. Ben Zvi , 242 F.3d 89, 95 (2d Cir. 2001) (citations omitted) (emphasis in original). "Likewise, where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone, the mandate rule generally prohibits [our Court] from reopening the issue on remand unless the mandate can reasonably be understood as permitting it to do so." Id. (citations omitted).

"The mandate rule serves two key interests, those of hierarchy and finality." Doe v. Chao , 511 F.3d 461, 465 (4th Cir. 2007). "A rule requiring a [lower] court to follow a [superior] court's directives that establish the law of a particular case is necessary to the operation of a hierarchical judicial system." Mirchandani v. United States , 836 F.2d 1223, 1225 (9th Cir. 1988). In our judicial hierarchy, the decisions of the D.C. Circuit bind the district courts within the circuit—and our Court—just as decisions of the Supreme Court bind the D.C. Circuit. "The principle of hierarchy is no empty shell. It protects the very value and essential nature of an appeal, namely the chance afforded litigants for review of a judgment and for correction, generally by a larger judicial body, of errors that may have serious consequences or work significant injustice." Doe , 511 F.3d at 465. With regard to finality, once the superior appellate court "determines questions put before it, the orderly resolution of the litigation requires the [lower] court to recognize those interests served by final judgments and to implement the appellate mandate faithfully." Id. at 466.

The appellant wishes to make an ex post facto challenge to his remaining conviction. He argues that the D.C. Circuit was constrained by Federal Rule of Criminal Procedure (Fed R. Crim. P.) 52 to find that this issue had been forfeited. Since we are not so constrained, argues the appellant, we should conduct a de novo review of this conviction before determining whether we should affirm his sentence.

The appellant's assertion that the scope of our review is more generous than the D.C. Circuit's is correct. The 2009 MCA § 950f(d) requires our Court to review the appellant's record for factual sufficiency and sentence appropriateness:

The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the military commission saw and heard the witnesses.

See also Hicks v. United States , 94 F.Supp.3d 1241, 1247 (CMCR 2015). This statutory language mirrors the language from Article 66(c), UCMJ, 10 U.S.C. § 866(c), which defines the authority exercised by the military service courts of criminal appeals. We, like the service courts of criminal appeals, may reach issues that are forfeited, or even waived. The Court of Appeals for the Armed Forces (CAAF) has interpreted this language to be a grant of an "awesome, plenary, de novo power of review." United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990). Under 2009 MCA § 948b(c), the appellate decisions from the service courts of criminal appeals and the CAAF are "instructive" but not "binding" on this Court.

Congress is presumed to know the judicial interpretation of statutory language when enacting legislation. When it later uses the same language in reenacting the statute or enacting another statute, it is understood that Congress is adopting the...