10 U.S.C. § 862 — Art. 62. Appeal by the United States

Page 783 TITLE 10—ARMED FORCES § 862 (A) The Statement of Trial Results under section 860 of this title (article 60). (B) Any modifications of, or supplements to, the Statement of Trial Results by reason of— (i) any post-trial action by the convening authority; or (ii) any ruling, order, or other determina- tion of the military judge that affects a plea, a finding, or the sentence. (2) Under rules prescribed by the President, the judgment under paragraph (1) shall be— (A) provided to the accused and to any vic- tim of the offense; and (B) made available to the public. (b) SUMMARY COURT-MARTIAL JUDGMENT.—The findings and sentence of a summary court-mar- tial, as modified by any post-trial action by the convening authority under section 860b of this title (article 60b), constitutes the judgment of the court-martial and shall be recorded and dis- tributed under rules prescribed by the President. (Added Pub. L. 114–328, div. E, title LIX, § 5324, Dec. 23, 2016, 130 Stat. 2927.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provi- sions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title. § 861. Art. 61. Waiver of right to appeal; with- drawal of appeal (a) WAIVER OF RIGHT TO APPEAL.—After entry of judgment in a general or special court-mar- tial, under procedures prescribed by the Sec- retary concerned, the accused may waive the right to appellate review in each case subject to such review under section 866 of this title (arti- cle 66). Such a waiver shall be— (1) signed by the accused and by defense counsel; and (2) attached to the record of trial. (b) WITHDRAWAL OF APPEAL.—In a general or special court-martial, the accused may with- draw an appeal at any time. (c) DEATH PENALTY CASE EXCEPTION.—Not- withstanding subsections (a) and (b), an accused may not waive the right to appeal or withdraw an appeal with respect to a judgment that in- cludes a sentence of death. (d) WAIVER OR WITHDRAWAL AS BAR.—Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver or withdrawal under this sec- tion bars review under section 866 of this title (article 66). (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(b)(1), Dec. 6, 1983, 97 Stat. 1397; Pub. L. 114–328, div. E, title LIX, § 5325, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 117–263, div. A, title V, § 544(a), Dec. 23, 2022, 136 Stat. 2582.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 861 .......... 50:648. May 5, 1950, ch. 169, § 1 (Art. 61), 64 Stat. 127. The word ‘‘each’’ is substituted for the word ‘‘every’’. Editorial Notes AMENDMENTS 2022—Subsec. (d). Pub. L. 117–263 substituted ‘‘Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver’’ for ‘‘A waiver’’. 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to waiver or withdrawal of appeal. 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Waiver or withdrawal of appeal’’ for ‘‘Same—General court-martial records’’ as section catchline, and, in text, substituting provisions relating to waiver or withdrawal of appeal for provisions relat- ing to initial action by the convening authority on gen- eral court-martial records. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–263, div. A, title V, § 544(d), Dec. 23, 2022, 136 Stat. 2583, provided that: ‘‘The amendments made by this section [amending this section and sections 866 and 869 of this title] shall not apply to— ‘‘(1) any matter that was submitted before the date of the enactment of this Act [Dec. 23, 2022] to a Court of Criminal Appeals established under section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice); or ‘‘(2) any matter that was submitted before the date of the enactment of this Act to a Judge Advocate General under section 869 of such title (article 69 of the Uniform Code of Military Justice).’’ EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title. § 862. Art. 62. Appeal by the United States (a)(1) In a trial by general or special court- martial, or in a pretrial proceeding under sec- tion 830a of this title (article 30a), the United States may appeal the following: (A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification. (B) An order or ruling which excludes evi- dence that is substantial proof of a fact mate- rial in the proceeding. (C) An order or ruling which directs the dis- closure of classified information. (D) An order or ruling which imposes sanc- tions for nondisclosure of classified informa- tion. (E) A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified informa- tion. Page 784 TITLE 10—ARMED FORCES § 863 (F) A refusal by the military judge to en- force an order described in subparagraph (E) that has previously been issued by appropriate authority. (G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members. (2)(A) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a cer- tification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substan- tial proof of a fact material in the proceeding. (B) An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44). (3) An appeal under this section shall be dili- gently prosecuted by appellate Government counsel. (b) An appeal under this section shall be for- warded by a means prescribed under regulations of the President directly to the Court of Crimi- nal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this sec- tion, the Court of Criminal Appeals may act only with respect to matters of law. (c) Any period of delay resulting from an ap- peal under this section shall be excluded in de- ciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit. (d) The United States may appeal a ruling or order of a military magistrate in the same man- ner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who des- ignated the military magistrate or to a military judge detailed to hear the issue. (e) The provisions of this section shall be lib- erally construed to effect its purposes. (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(c)(1), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, title XI, § 1141(a), Feb. 10, 1996, 110 Stat. 466; Pub. L. 114–328, div. E, title LIX, § 5326, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 115–91, div. A, title V, § 531(h), Dec. 12, 2017, 131 Stat. 1385.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 862(a) ...... 862(b) ...... 50:649(a). 50:649(b). May 5, 1950, ch. 169, § 1 (Art. 62), 64 Stat. 127. Editorial Notes AMENDMENTS 2017—Subsec. (b). Pub. L. 115–91 struck out ‘‘, notwithstanding section 866(c) of this title (article 66(c))’’ after ‘‘matters of law’’. 2016—Subsec. (a)(1). Pub. L. 114–328, § 5326(1)(A), in in- troductory provisions, substituted ‘‘general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:’’ for ‘‘court-martial in which a military judge presides and in which a punitive dis- charge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):’’. Subsec. (a)(1)(G). Pub. L. 114–328, § 5326(1)(B), added subpar. (G). Subsec. (a)(2). Pub. L. 114–328, § 5326(2), designated ex- isting provisions as subpar. (A) and added subpar. (B). Subsecs. (d), (e). Pub. L. 114–328, § 5326(3), added sub- secs. (d) and (e). 1996—Subsec. (a)(1). Pub. L. 104–106 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘In a trial by court-martial in which a military judge presides and in which a punitive discharge may be ad- judged, the United States may appeal an order or rul- ing of the military judge which terminates the pro- ceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.’’ 1994—Subsec. (b). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Review’’ in two places. 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Appeal by the United States’’ for ‘‘Reconsid- eration and revision’’ as section catchline, and, in text, substituting provisions relating to appeals by the United States for provisions relating to the convening authority returning the record to the court for recon- sideration and appropriate action. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title. § 863. Art. 63. Rehearings (a) Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court- martial, and no sentence in excess of or more se- vere than the original sentence may be ad- judged, unless the sentence is based upon a find- ing of guilty of an offense not considered upon