2008 edition - Fort Sam Houston - U.S. Army

language of Article 48 applies only to “direct” contempts. See W.
Winthrop, Military Law and Precedents 301–302 (2d ed. 1920
reprint); paragraph 101 of MCM, 1928; paragraph 109 of MCM
(Army), 1949; paragraph 118 a of MCM, 1951; paragraph 118 a
of MCM, 1969 (Rev.). The definition of a “direct” contempt is
also based on these sources. See also 8B J. Moore, Moore’s
Federal Practice Para. 42.02[3] (1982 rev. ed); 18 U.S. § 401; cf.
Ex parte Savin, 131 U.S. 267, witnessed by the court and other
direct contempts is based on Cooke v. United States, 267 U.S.
517 (1925), and is important for procedural purposes. See subsection
(b) below.
(b) Method of disposition. The subsection is based on Fed. R.
Crim. P. 42. By its terms, Article 48 makes punishable contemptuous
behavior which, while not directly witnessed by the courtmartial,
disturbs its proceedings (e.g., a disturbance in the waiting
room). As Fed. R. Crim. P. 42(b) recognizes, this type of contempt
may not be punished summarily. See Johnson v. Mississippi,
403 U.S. 212 (1971); Cooke v. United States, supra. Paragraph
118 of MCM, 1969 (Rev.) did not adequately distinguish these
types of contempt. There may be technical and practical problems
associated with proceeding under subsection (b)(2) but the power
to do so appears to exist under Article 48.
(c) Procedure; who may punish for contempt. This subsection
prescribes different procedures for punishment for contempt when
members are or are not present. The Working Group examined
the possibility of vesting contempt power solely in the military
judge; but Article 48 provides that “court[s]-martial” may punish
for contempt. When members are present, the military judge is
not the court-martial. See Article 16. When trial by military judge
alone is requested and approved, the military judge is the courtmartial.
Under Article 39(a) the military judge may “call the court
into session without the presence of the members,” and the military
judge therefore acts as the court-martial within the meaning
of Article 16 and 48. Since Article 48 authorizes summary punishment
for contempt committed in the presence of the courtmartial
(see Hearings of H. R. 2498 Before a Subcomm. of the
House Comm. on Armed Services, 81st Cong., 1st Sess. 1060
(1949)), its purpose would be destroyed by requiring members
who were not present and did not observe the behavior to decide
the matter. The second sentence in subsection (c)(1) parallels Fed.
R. Crim. P. 42(a).
The procedure for contempt proceedings before members has
been simplified to the extent possible consistent with the requirement
for the members to decide the issue. The procedure for a
preliminary ruling by the military judge to decide as a matter of
law that no contempt has occurred is expressly recognized for the
first time. See Article 51(b). The requirement for a two-thirds
vote on findings and punishment is based on Article 52(a) and
(b)(3).
(d) Record; review. This subsection is based on the eighth paragraph
of paragraph 118 b of MCM, 1969 (Rev.) concerning the
record and post-trial action. The requirement for approval and
execution of the sentence by the convening authority is based on
previous practice. See W. Winthrop, supra at 301–312; paragraph
101 of MCM, 1928, paragraph 109 of MCM (Army) and MCM
(AF), 1949, paragraph 118 of MCM, 1951; paragraph 118 b of
MCM, 1969 (Rev.). This requirement also reflects the need of the
command to control its assets. The last sentence is also based on
ANALYSIS
App. 21, R.C.M. 810(d)
Hearings on H. R. 2498 Before a Subcomm. of the House Comm.
on Armed Services, 81st Cong., 1st Sess. 1060 (1949).
(e) Sentence. This subsection is based on Article 57 and paragraph
118 b of MCM, 1969 (Rev.). It clarifies that the military
judge may delay announcement of a sentence to permit participation
of the contemnor when necessary. Paragraph 118 b of MCM,
1969 (Rev.) was ambiguous in this regard.
(f) Informing person held in contempt. This subsection and the
discussion are based on paragraph 118 b of MCM, 1969 (Rev.); it
has been modified for clarity.
1998 Amendment: R.C.M. 809 was amended to modernize
military contempt procedures, as recommended in United States
v. Burnett, 27 M.J. 99, 106 (C.M.A. 1988). Thus, the amendment
simplifies the contempt procedure in trials by courts-martial by
vesting contempt power in the military judge and eliminating the
m e m b e r s ’ i n v o l v e m e n t i n t h e p r o c e s s . T h e a m e n d m e n t a l s o
provides that the court-martial proceedings need not be suspended
while the contempt proceedings are conducted. The proceedings
will be conducted by the military judge in all cases, outside of the
members’ presence. The military judge also exercises discretion
as to the timing of the proceedings and, therefore, may assure that
the court-martial is not otherwise unnecessarily disrupted or the
accused prejudiced by the contempt proceedings. See Sacher v.
United States, 343 U.S. 1, 10, 72 S. Ct. 451, 455, 96 L. Ed. 717,
724 (1952). The amendment also brings court-martial contempt
procedures into line with the procedure applicable in other courts.
Rule 810 Procedures for rehearings, new trials,
and other trials
Introduction. This rule is based on Articles 63 and 73. It
concerns only the procedures for rehearings, new trials, and other
trials. Matters relating to ordering rehearings or new trials are
covered in R.C.M. 1107 and 1210.
(a) In general. This subsection is based on paragraph 81 b of
MCM, 1969 (Rev.).
(b) Composition. This subsection is based on Article 63(b) and
the seventh paragraph of paragraph 92 a of MCM, 1969 (Rev.).
A s t o s u b s e c t i o n ( 3 ) , s e e a l s o U n i t e d S t a t e s v . S t a t e n , 2 1
U.S.C.M.A. 493, 45 C.M.R. 267 (1972).
(c) Examination of record of former proceedings. This subsection
is based on paragraph 81 c of MCM, 1969 (Rev.).
(d) Sentence limitations. Subsection (1) is based on the second
sentence of Article 63 and its legislative history. See H. R. Rep.
No. 491, 81st Cong., 1st Sess. 30 (1949) and paragraph 81 d of
MCM, 1969 (Rev.). See also United States v. Ball, 163 U.S. 662
(1896); United States v. Culver, 22 U.S.C.M.A. 141, 46 C.M.R.
141 (1973); United States v. Eschmann, 11 U.S.C.M.A. 64, 28
C.M.R. 288 (1959); United States v. Jones, 10 U.S.C.M.A. 532,
28 C.M.R. 98 (1959); United States v. Dean, 7 U.S.C.M.A. 721,
23 C.M.R. 185 (1957). The provision (prohibiting advising members
of the basis of the sentence limitation) in the third paragraph
of paragraph 81 d(1) of MCM, 1969 (Rev.) has been placed, in
precatory language, in the discussion. The prohibition was based
on United States v. Eschmann, supra. Analysis of Contents, Manual
for Courts-Martial, United States, 1969, Revised edition, DA
PAM 27–2 at 15–2 (1970). The rationale of Eschmann is subject
to reasonable challenge. See United States v. Gutierrez, 11 M.J.
122, 125 n.3 (C.M.A. 1981) (Everett, C. J., concurring in the
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