The weekend is here.

The National Institute of Justice magazine came over the transom this week, with several interesting items. Dr. Jon Gould, et. al., have a lengthy article on wrongful convictions, Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice – over 400 pages.  A bit of his research has been sponsored by the NIJ.  So, NIJ has condensed that to some clips of a video interview with him on the primary reasons for wrongful convictions:  Brady violations, tunnel vision (which I often refer to by its name in psychology of confirmation bias).  There is some consistency with this graph published by the Center for Prosecutorial Integrity.  There are several Gould clips available through YouTube, and there is a transcript available at each link.  Here is part III, they are all less than five minutes.

The first video of the three is where he discusses a general approach.  You might be interested in his term, “a near miss.” In the second video he talks about the top ten significant factors for a wrongful conviction. The second NIJ set of pieces relate to collateral consequences. Sarah Berson, Beyond the Sentence – Understanding Collateral Consequences, and you might check out the National Inventory of Collateral Consequences of Conviction.

 The collateral consequences of a criminal conviction—legal sanctions and restrictions imposed upon people because of their criminal record—are hard to find and harder to understand. Now it will be easier to do both. Congress directed the National Institute of Justice to collect and study collateral consequences in all U.S. jurisdictions, and NIJ selected the ABA Criminal Justice Section to perform the necessary research and analysis.

The Barrister is an English publication full of pithy articles about the mundane to important affecting the legal profession.  Here is a very interesting piece by Barbara Hewson, The cult of victimhood and the limits of the law.  An aspect of her piece is another reference to confirmation bias and the issue of the associated “believe the victim” problems. And finally, not to be accomplished this weekend, Hunter & Else, The Attorney’s Guide to Defending Veterans in Criminal Court, came across the transom in hard copy form.  It is published by the Veterans Defense Project.  I’ve been privileged to have access to the digital version pre-publication.  While the book is directed toward civilian court, there are certainly a number of sections that can be adapted for court-martial.  Evan Seamone has a chapter to himself.

In United States v. Jones, No. 14-0071/AR (CAAFlog case page), a potential co-conspirator named Ellis (who was an augmentee military police officer) learned about the completed crime (a robbery) and questioned Jones without complying with Article 31(b), obtaining a confession. CAAF is reviewing the case to determine if the military judge erred by denying the Defense motion to suppress that confession.

As I discussed in my argument preview, current precedent makes for a hard fight for the appellant in Jones, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

But listening to last week’s project outreach oral argument, I got the feeling that CAAF’s resolution of the case just might involve a major decision about the applicability of Article 31(b). Then, on Monday (five days after hearing argument in Jones), CAAF granted review of a similar issue in the case of one of Jones’ co-conspirators, who was also questioned by Ellis:

No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS TAKEN FROM APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ.

Briefs will be filed under Rule 25.

I discussed this case in a post last December titled “The right to remain silent when the evidence of guilt is overwhelming” (analyzing the Army CCA’s consideration of numerous references during the trial to Carrasquillo’s invocation of his right to remain silent). The CCA’s opinion did not discuss the admissibility of any statements Carrasquillo may have made to Ellis. But with what we know about Jones, the following passage from the CCA’s opinion takes on new meaning:

When SPC [Ellis] found out that Mr. DIIA had been robbed and heard a description of the assailants, he confronted appellant and SPC [Jones], who admitted that they participated in the crimes. Specialist [Ellis] informed his command of these disclosures, and appellant and the two other soldiers were quickly identified as potential suspects in the crimes. Appellant and SPC [Jones] were removed from the redeployment flight.

United States v. Carrasquillo, 72 M.J. 850, 852 (A.Ct.Crim.App. Nov. 27, 2013).

A new prosecutor once complained to me about a certain celebratory tradition of Marine Corps defense counsel, claiming that it is unprofessional bragging. “When you lose 90% of the cases,” I responded, “you really need to celebrate the wins.”

And the defense really does lose (that is to say, there is a conviction) in about 90% of courts-martial. For instance, the FY13 report of the Code Committee provides the following numbers for the period October 1, 2012 to September 30, 2013:

The Army tried 1,087 general and special courts-martial, resulting in 989 convictions and 98 acquittals (a 91% conviction rate).

The Navy tried 293 general and special courts-martial, resulting in 262 convictions and 31 acquittals (an 89% conviction rate).

The Marine Corps tried 427 general and special courts-martial, resulting in 367 convictions and 60 acquittals (an 86% conviction rate).

The Air Force conducted 619 general and special courts-martial, resulting in 525 convictions and 94 acquittals (an 85% conviction rate).

The Coast Guard conducted 23 general and special courts-martial, resulting in 20 convictions and 3 acquittals (an 87% conviction rate).

As the 2,163 courts-martial resulting in convictions in FY13 work their way through the military appellate system, we will have a reason to discuss maybe 100 of them on this blog. But those 100 or so cases will be notable because of asserted errors for which a remedy will benefit the accused (and, if you believe that military justice is a zero-sum game, hurt the Government).

We won’t discuss the vast majority of cases – especially the cases with airtight investigations, overwhelming proof of guilt, and flawless prosecutions – because there will be nothing much to discuss. Frankly, from an appellate perspective, those cases are boring.

But when we wade into the provocative muck of these other cases – the ones with judicial bias, prosecutorial misconduct, insufficient evidence, issues of first impression, and just plain bad lawyering – we’re inevitably talking about reasons why seemingly-bad people should be set free. Intelligent conversation about these cases requires looking beyond the bad things that the people in them did (or at least were convicted of doing) and focusing on the system that is punishing them and the kind of justice that it provides.

My contributions to this blog aren’t defense-oriented nor are they prosecution-oriented. I’m interested in the law, I want to get it right, and I write about cases that intrigue me. That’s my bias. And I suspect that the other contributors, and the vast majority of our readers, feel exactly the same way.

CAAF decided the Air Force case of United States v. Janssen, No 14-0130/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, April 15, 2014, finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge. CAAF finds that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

Judge Stucky writes for a unanimous court.

As a civilian, Judge Soybel (as he is repeatedly referred to in CAAF’s opinion) was first appointed to the AFCCA by the Judge Advocate General of the Air Force on January 25, 2013. He promptly got to work, participating in numerous cases, including Janssen. However, on May 23, 2013, the CCA recalled all of those cases. Then, on June 25, 2013, the Secretary of Defense issued a memorandum that re-appointed Judge Soybel to the CCA, and he again participated in numerous cases, again including Janssen. The CCA refused to reconsider those cases, and Janssen appealed to CAAF.

Judge Soybel’s appointment was presumably made to assist with the backlog at the AFCCA, and together the backlog and the appointment issue were our #9 military justice story of 2013. But CAAF summarily remanded numerous cases over the summer due to concerns with the appointment, and then on December 19, 2013, it granted review in Janssen and ordered expedited briefing on a single issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

CAAF also granted numerous trailers (I’m tracking eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). But the controversies continued to mount, as CAAF rejected the Government’s brief of the granted issue in an order that stated:

On consideration of Appellee’s brief and its January 15, 2014, letter to the Clerk, [citing supplemental authority] we find that they insufficiently address the assigned issue and Appellant’s argument. . . .

The Government submitted a second brief that surveyed the legal landscape and posed the ultimate question for who has the power to make such an appointment of “if not the Secretary of Defense, then whom?” Gov’t Second Br. at 13. Judge Stucky answers, “the President”:

The conclusion is clear: While Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint appellate military judges, it has not done so. This being the case, the appointment of Judge Soybel was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers. See Edmond, 520 U.S. at 660. Since this was not done, his appointment as an appellate military judge is invalid and of no effect.

Slip op. at 13.

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A number of folks have sent me tips with news reports, including this story from the Los Angeles Times, about a major review of the UCMJ in progress within the Pentagon. This is old news.

Back in November I wrote that SECDEF orders comprehensive review of the UCMJ. This Secretary’s review is actually one of two separate ongoing reviews of the military justice system (the other is being conducted by the Response Systems to Adult Sexual Crimes Panel, created by Sec. 576 of the FY13 NDAA).

Both reviews were discussed by the Joint Service Committee representatives at the 2014 Code Committee meeting. My notes from the meeting (and a scan of the JSC’s slide deck that was provided as a handout) are in this post from March.

Notably, the JSC reported that the folks conducting the review ordered by the SECDEF are called the “Military Justice Review Group,” and that Senior Judge Effron of CAAF will direct the Group (a fact contained in the LA Times story).

CAAF has decided the “Soybel” issue against the Gov., which affects Janssen and approximately 32 trailers.

United States v. Janssen,

We hold that the Government failed to establish that the judge was properly appointed under United States v. Janssen, the Appointments Clause of the Constitution of the United States. U.S. Const. art. II, § 2, cl. 2.

In a published opinion in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (link to slip op.), the AFCCA reverses convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. A three-judge panel of the court lead by Chief Judge Roan finds that a DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellant of his constitutional right to confrontation, and the panel split 2-1 to find that error prejudicial.

The fact of the case are that:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified the appellant as her attacker.

Slip op. at 2. DNA samples were collected from both SrA CA and the appellant. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellant’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, named Mr. Davenport.

The Prosecution intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Prosecution offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, with the Defense “arguing [that] the appellant’s right to confront Mr. Fisher, the witness who had performed key steps in the DNA analysis that was to be used against him at trial, would be violated.” Slip op. at 2. During a pretrial hearing, Mr. Davenport explained that:

during his technical review of Mr. Fisher’s report, he examined the case file and reviewed the documents submitted by AFOSI to ensure the tag numbers were properly reflected on the report confirming that evidence in fact came into the laboratory and was properly documented. He also examined the report to ensure all steps of the testing process were conducted and recorded, the positive and negative controls were tested, and the lot numbers were written down. As part of the technical review, Mr. Davenport testified that although he did not reconstruct the DNA profiles previously developed by Mr. Fisher (as described in steps 1 through 7 above), he did examine the raw data that was created during the generation of the DNA profile by running the information through a computer program to produce a statistical frequency determination. He personally interpreted the data to determine whether the DNA profiles matched and then compared his findings with those of the original analyst to verify the results. This same process was repeated for all known samples and submitted items of evidence. Following this, Mr. Davenport concluded the semen found on the swabs taken from the victim in this case contained the appellant’s DNA profile.

Slip op. at 5. The military judge denied the Defense motion, concluding that “Mr. Davenport could testify concerning his independent findings without violating the Confrontation Clause. This included providing his independent opinion about the reliability of the testing procedures used, the findings and results, and the frequency statistics related to those findings and results.” Slip op. at 5. Mr. Davenport then testified along these lines at trial. Mr. Fisher’s report was not admitted into evidence.

The three-judge panel of the CCA unanimously concludes that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellant’s right to confrontation. Slip op. at 6; slip op. at 18 (Orr, S.J. concurring in part and dissenting in part).

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CAAF is considering the impact of a variance in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is an issue when findings are made by exceptions and substitutions (exceptions are when words are deleted from the language of the specification; substitutions are when words are added).

A variance is material when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is fatal (prejudicial) when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In Treat, the Army CCA found no material variance, but it also concluded that even if the variance was material then it was not fatal because it did not prejudice the appellant (due to the nature of the defense he presented at trial). I discussed the CCA’s published opinion in this post, where I disagreed with its finding of no material variance, but I agreed with its conclusion on the issue of prejudice. CAAF’s review will determine which (if either) interpretation is correct.

Now the Air Force CCA joins the variance debate with a published opinion in United States v. Mandy, __ M.J. __, No. 38227 (A.F.Ct.Crim.App. Apr. 10. 2014) (link to slip op.). The appellant – a captain – was convicted of numerous offenses including malingering in that he:

[D]id, at or near Franklin, Tennessee, on or about 21 March 2012, for the purpose of avoiding his duty at Eglin Air Force Base, intentionally injure himself by lacerating his left knee.

Slip op. at 3. But the members made findings that excepted the words “intentionally injured himself by lacerating his left knee,” and substituted the words “feign disability by exaggerating the extent of the injury to his left knee.” The Defense did not object to this change (though it did object to a change the members made to a different charge), and the AFCCA considered this change under the plain error test. The court finds that it is both material and fatal (prejudicial), and dismisses the finding.

The CCA notes that “the statutory language of Article 115, UCMJ, provides for two distinct forms of malingering: feigning illness or injury, or intentionally inflicting self-injury.” Slip op. at 6. Because only the intentionally-inflicting theory was before the members, “the appellant’s conviction of malingering by feigning disability was a conviction of a crime different from the specification that he was expected to defend himself against before the members.” Slip op. at 6. Somewhat ironically, the Prosecution actually withdrew language that alleged the feigning-disability theory before trial. Because of this withdrawal, the CCA concludes that “the appellant was no longer charged with this different theory and was no longer on notice that he needed to defend against it until the military judge’s instructions.” Slip op. at 8.

The CCA then reasses the sentence but provides no relief (the appellant was also convicted of unauthorized absence, two specifications of willfully disobeying a superior commissioned officer, and one specification of dereliction of duty, and he was sentenced to a dismissal and confinement for two years; the convening authority then reduced the confinement to one year).

CAAF’s docket for Friday shows the following certification:

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES’ PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE’S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.

WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.

The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.

I discussed the AFCCA’s ruling in this post, where I wrote:

I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

So true.

This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).

It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

Courthouse news is reporting that MG Buchanan approved Manning’s findings and sentence, and ordered it executed; and hopefully following the Fulton gouge, did not order the punitive discharge executed.

On, on, on to ACCA (where AMJ Lind will likely recuse herself :-)).

The recent unpublished opinion in the Army case of United States v. Lovell, No. 2011006 (A.Ct.Crim.App. Mar. 31, 2014) (link to slip op.) is a fascinating read.

Specialist Lovell pleaded guilty at a special court-martial (without the benefit of a pretrial agreement) to desertion with intent to shirk important service, unauthorized absence, and missing movement by design, in violation of Articles 85, 86, and 87. He then elected to be sentenced by a panel of officer members, and was adjudged a punishment of confinement for 6 months, reduction to E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

The facts were that:

Appellant deployed with his unit to Iraq from March 2004 through March 2005. When he returned, appellant found his wife had developed an illness which caused seizures and resulted in her inability to drive a car. Appellant asserted that if he deployed again, he feared his wife would be unable to care for their two children, a five-year-old and an eighteen-month-old. Unable to obtain a hardship discharge before his next scheduled deployment, appellant chose to absent himself without leave from his unit on 18 September 2006, thereby missing movement on 1 October 2006, and then remained in desertion until 13 July 2011.

Slip op. at 2. It’s reasonable to feel at least a little sympathy for the situation the appellant faced in 2006. However, the appellant squandered that sympathy when he deserted for the following five years. For the Government, this case was as easy as it gets.

But during voir dire of the panel that determined the sentence, one member (a colonel) said, “I filled out my questionnaire and there’s a matter on there that the court may want to consider and I think it may be grounds for challenge.” Slip op. at 2. The matter was that the Colonel obtained conscientious objector status in 1992. The member was not asked any further questions.

Rather than simply ignore the Colonel’s conscientious objector status (and focus instead on the appellant’s half-decade of desertion) the Government counsel challenged the Colonel for cause, stating:

[H]e’s a conscientious objector. I believe that will apparently skew his — his view of an absence-type offense, especially here where the absence involves what is a to-shirk-hazardous — or shirk important service in Iraq and missing movement and that movement we will explain was to Iraq, that he will unfairly mitigate that — that offense based on his belief he brought into the courtroom today.

Slip op. at 3. The Defense objected but the military judge granted the challenge. That is, “the military judge, without explanation, granted the government’s challenge.” Slip op. at 4 (emphasis added).

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on April 28, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 8, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 23, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Audio of Wednesday’s oral argument in United States v. Jones, No. 14-0071/AR (CAAFlog case page) is available here.

Update: I haven’t been able to download the audio (it looks like CAAF’s server is timing out). If anyone is able to download it, please send it to me at zack@caaflog.com and I’ll mirror it on our server.

Second update: Audio available here.

Earlier this term, CAAF decided the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page), reversing the Air Force CCA’s decision on an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone.

The issue in Wicks was whether the Government met its burden to show that a law enforcement search subsequent to a private search did not exceed the scope of the private search. But now the AFCCA considers another trial-stage suppression issue involving a similar question, in United States v. Buford, No. 2013-26 (A.F.Cr.Crim.App. Apr. 4, 2014) (link to order).

In Buford, the accused’s wife “found a ‘fake’ Facebook account that was associated with [his] e-mail address. [She] identified the page as a ‘fake’ account because the name and photo associated with the account were not of the [accused], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.” Order at 2. Eventually, she shared the information with Airman First Class  (A1C) “RM,” a male friend of hers who was also an active duty Security Forces member. A1C RM then searched the Facebook account and an email account, preserving screenshots of sexually explicit matters. A1C RM then encouraged the accused’s wife to make a report to law enforcement, and during subsequent searches “A1C RM acted as a ‘conduit’ between [the wife] and the AFOSI agents because ‘he was a cop and he could relate to them.’” Order at 3. Eventually, various electronic media was searched and seized, and the accused was charged with wrongfully committing indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134, UCMJ.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C RM was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. The CCA affirms this ruling in part.

Notably, the judge and the CCA make a critical distinction between the electronic devices themselves and the online accounts accessed by the devices:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted) (emphasis added).

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CAAF decided the Air Force case of United States v. Talkington, No. 13-0601/AF, 73 M.J. 212 (CAAFlog case page) (link to slip op.), on Monday, April 7, 2014, finding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” and that “while an accused may raise a collateral consequence in an unsworn statement . . . the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused.” Slip op. at 2. CAAF affirms the sentence and the decision of the Air Force CCA.

Judge Ryan writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker concurs in the result, joined by Judge Ohlson.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three attempts in violation of Article 80, UCMJ: two specifications of attempted aggravated sexual assault and one specification of attempted abusive sexual contact. He was sentenced to reduction to E-1, total forfeitures, confinement for eight months, and a bad-conduct discharge.

Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I will have to register as a sex offender for life . . . I am not very sure what sort of work I can find.” Slip op. at 3. The Government then asked the military judge to instruct the members to disregard the possibility of sex offender registration when determining a sentence. Over Defense objection, the judge gave a lengthy instruction to the members that included:

However, as a general evidentiary matter, evidence regarding possible registration as a sex offender or the potential of an administrative discharge, and the consequences thereof, would be characterized as a collateral consequences [sic], and thus inadmissible outside of the context of an unsworn statement. . . . Possible collateral consequences of the sentence, beyond those upon which you are instructed, should not be a part of your deliberations other than as I have earlier discussed.

As to sex offender registration requirements . . . [e]ven if such requirements were predictable, whether or not the accused will be or should be registered as a sex offender and whether he will be or should be administratively discharged is not a matter before you. Rather, determining an appropriate sentence for this accused, in accordance with my instructions, is your charge. In short, use of this limited information is fraught with problems.

Slip op. at 4. The Air Force CCA affirmed the convictions without considering the propriety of this instruction, and CAAF granted review of one issue:

Whether the military judge erred by instructing the members that consideration of sex offender registration is “not a matter before them” and “fraught with problems.”

Judge Ryan’s opinion of the court can be summarized in one powerful sentence:

The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing.

Slip op. at 8 (citation omitted). This is, to say the least, a dramatic victory for the Government.

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