United States v. PEREZ

The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) recently affirmed the findings and sentence in *United States v. Perez*, involving Private (E-1) Isaiah M. Perez of the U.S. Marine Corps. The per curiam opinion, issued on December 28, 2023, confirmed the outcome of a special court-martial that resulted in confinement, forfeiture of pay, and a bad-conduct discharge. Notably, the appellant submitted the case without assigning any errors and did not challenge the factual sufficiency of the findings. The NMCCA, therefore, conducted its review under the Uniform Code of Military Justice (UCMJ) Articles 59 and 66, concluding that the findings and sentence were correct in law and fact, and no error materially prejudicial to the appellant’s substantial rights occurred. This case highlights the appellate process in military justice when an appellant elects not to contest the lower court’s determinations.

The military justice system, with its distinct courts and appellate procedures, frequently presents cases that, while seemingly straightforward, offer valuable insights into its operational nuances. One such instance is the recent decision by the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) in *United States v. Perez*, concerning Private (E-1) Isaiah M. Perez of the U.S. Marine Corps. This case, decided on December 28, 2023, involved the affirmance of a special court-martial conviction and sentence, which included confinement, forfeiture of pay, and a bad-conduct discharge.

The significance of *United States v. Perez* lies not in a groundbreaking legal interpretation or a contentious factual dispute, but rather in its procedural posture. The appellant chose to submit the case to the NMCCA without assigning any errors and without challenging the factual sufficiency of the findings. This article will delve into the background of military appellate review, analyze the NMCCA's per curiam decision in light of the appellant's strategic choice, and discuss the implications for practitioners navigating the unique landscape of military justice.

The Uniform Code of Military Justice (UCMJ), codified in Title 10 of the United States Code, establishes the legal framework governing the conduct of U.S. armed forces personnel. Under the UCMJ, offenses are prosecuted through courts-martial, which are categorized into summary, special, and general courts-martial, each with varying jurisdictional limits and potential punishments. A special court-martial, as was the case for Private Perez, is an intermediate-level court that can adjudge sentences up to a bad-conduct discharge, one year of confinement, and forfeiture of two-thirds pay per month for one year.

Following a court-martial conviction, service members have a right to appellate review. Cases involving a punitive discharge (such as a bad-conduct discharge) or confinement for one year or more are automatically reviewed by a Court of Criminal Appeals for the respective service branch. The NMCCA, established under Article 66 of the UCMJ, is responsible for reviewing cases from the Navy and Marine Corps. These courts are tasked with determining not only the legal correctness of the findings and sentence but also their factual sufficiency, acting as the final arbiters of fact in the military justice system. Article 59 of the UCMJ further dictates that a finding or sentence may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

In *United States v. Perez*, Private Isaiah M. Perez was convicted by a special court-martial convened at Marine Corps Recruit Depot, Parris Island, South Carolina, with a military judge sitting alone. The adjudged sentence included six months of confinement, forfeiture of $1,000.00 pay per month for six months, and a bad-conduct discharge. Upon appeal to the NMCCA, the case was submitted without any assigned errors by the appellant, and no challenge was made to the factual sufficiency of the findings.

Given this procedural posture, the NMCCA's review was necessarily circumscribed. The court issued a per curiam opinion, a decision "by the court as a whole" rather than by a specific judge, often indicating a unanimous and relatively uncontroversial ruling. The NMCCA affirmed the findings and sentence, stating that "after careful consideration of the record, submitted without assignment of error, and Appellant having not challenged the factual sufficiency of this case, we have determined that the findings are correct in law, the sentence is correct in law and fact, and that no error materially prejudicial to Appellant's substantial rights occurred." This affirmation underscores the principle that in the absence of specific legal or factual challenges, the appellate court's role is primarily to ensure that the proceedings were conducted in accordance with law and that the evidence supports the findings.

The decision in *Perez* illustrates the high bar for overturning a court-martial conviction when an appellant declines to articulate specific errors. While military appellate courts have the unique power to review factual sufficiency, this power is typically exercised in response to an appellant's arguments. Without such arguments, the court's review for "correctness in law and fact" becomes a more general assessment of the record. This contrasts sharply with cases where appellants raise detailed assignments of error, often leading to more extensive opinions that delve into statutory interpretation, evidentiary rulings, or constitutional challenges. The absence of assigned error in *Perez* effectively streamlined the appellate process, leading to a swift affirmance based on the record's apparent regularity and legal soundness.

The NMCCA's decision in *United States v. Perez* serves as a practical reminder for military justice practitioners regarding the strategic importance of appellate advocacy. While an appellant is not obligated to assign errors, doing so is crucial for directing the appellate court's attention to specific grievances and maximizing the chances of a favorable outcome. The per curiam affirmance in *Perez* highlights that, without specific challenges to legal or factual sufficiency, military appellate courts will generally uphold the findings and sentence if the record demonstrates compliance with the UCMJ and the absence of materially prejudicial error.

For attorneys representing service members, this case reinforces the need for thorough review of the trial record to identify any potential errors, even if seemingly minor, that could form the basis of an appeal. The decision to submit a case without assigned error should be a deliberate strategic choice, typically made when the record is exceptionally clean or when the appellant seeks to expedite the finality of the judgment. Practitioners should advise clients that while the military appellate courts conduct a broad review, the most effective appeals are those that precisely articulate and substantiate legal or factual infirmities in the lower court proceedings. The *Perez* case, therefore, stands as a testament to the routine functioning of military appellate review and the consequences of an appellant's decision regarding the scope of their appeal.