Here is a link (courtesy of Lawfare) to the Hicks case decision from U.S. Court of Military Commissions Review (USCMCR) .  The Feb. 18, 2015 decision (I am a little tardy), after finding that Hicks waiver of appellate review . . . didn’t waive appellate review, set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).  If you’ll recall, here (Lawfare), Al Bahlul found that (as summarized by Judge Kavanaugh):

A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

Since Hicks has long since been released from Gitmo, this doesn’t do much for him.  His defense counsel should get an astro-turf rug in front of his door (sorry, bad Code 45 tradition). WSJ coverage here.

More to follow, here is the order.  Prior coverage from the WSJ here.

Audio of today’s oral arguments is available at the following links:

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page): Oral argument audio.

United States v. Woods, No. 14-0783/NA (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Newton, __ M.J. __, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.

Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.

Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:

  • In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
  • In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
  • In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.

Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.

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When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.

The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE

Here is the FedReg announcement for the latest JPP meeting on Mar. 13, 2015 from 9 am to 5 pm. The focus of this meeting is to consider “compensation and restitution for victims of offenses under the UCMJ, and develop recommendations on expanding such compensation and restitution.”  Though not stated in the summary, the agenda makes clear that the focus is on restitution and compensation for sexual assault victims.  Below is the agenda (I am guessing somewhere in there OFL is speaking):

  • 8:30 a.m. – 9:00 a.m. Administrative Session (41 CFR 102-3.160, 3 not subject to notice & open meeting requirements)
  • 9:00 a.m. – 10:00 a.m. DoD Overview of Compensation and Restitution (public meeting begins)
    • Speakers: Department of Defense subject matter experts
  • 10:00 a.m. – 11:00 a.m. Economic Needs of Sexual Assault Victims and Barriers to Compensation
    • Speakers: Law school professors with recent scholarship on restitution and compensation for victims of sexual assault crimes
  • 11:00 a.m. – 12:15 p.m. State Compensation Programs: History, Purposes, and Use by Military/Dependent Victims
    • Speakers: Representatives from national and state crime victim compensation associations
  • 12:15 p.m. – 1:00 p.m. Lunch
  • 1:00 p.m. – 2:15 p.m. How Victims Can Obtain Restitution or Compensation for Crimes Under the Uniform Code of Military Justice
    • Speakers: Military Services’ subject matter experts
  • 2:15 p.m. – 4:45 p.m. Perspectives on Compensation and Restitution for Sexual Assault Victims
    • Speakers: Civilian and military practitioners, representatives from victim advocacy organizations
  • 4:45 p.m. – 5:00 p.m. Public Comment

CAAF decided the Air Force case of United States v. Gutierrez, __ M.J. __, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

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In a recent published opinion in United States v. Dean, __ M.J. __, No. 20140058 (A. Ct. Crim. App. Feb. 10, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the convening authority erred in summarily denying the appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade, but that the appellant failed to show an entitlement to relief.

Judge Lind writes for the panel.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of possession of child pornography in violation of Article 134. He was sentenced to confinement for seven months, reduction to E-1, and a bad-conduct discharge. After sentencing, the appellant submitted a request for deferment of the imposition of automatic forfeitures of pay and adjudged reduction in rank (both of which occur automatically, 14 days after adjudged). The convening authority (CA) did not explicitly act on the appellant’s request for deferment, but the convening authority did approve the entire sentence as adjudged.

Judge Lind finds that the circumstances of the convening authority’s action on the sentence “sufficiently reflects [that] the CA reviewed, considered, and acted on appellant’s [deferment request].” Slip op. at 4. However, by not separately acting on the deferment request, “the CA summarily denied appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade. This was error.” Slip op. at 5.

Yet the appellant gets no relief because the CCA finds that the appellant must present “credible evidence that the CA’s denial was for unlawful or improper reasons” and further that the appellant “must make a colorable showing of possible prejudice that the CA would have granted the deferment absent consideration of the unlawful or improper reason.” Slip op. at 5 (marks omitted) (citing United States v. Zimmer, 56 M.J. 869 (A. Ct. Crim. App. 2002); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

This is an awfully high burden. When, as in Dean, there are no identifiable factors that the convening authority considered before improperly denying a deferment request without stating the reasons why, it’s hard to imagine how any appellant could ever show that the denial was for an unlawful or improper reason and that the convening authority would have granted the request absent that unlawful or improper reason.

But what’s more interesting about this opinion (and perhaps the reason it’s a published decision) is that this burden seems to be a novel interpretation that was made by the Army CCA in Zimmer (where the appellant was granted relief). Because of this, I think Dean deserves review by CAAF.

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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: CAAF will hear oral argument in two cases this week, both on Wednesday, February 25, 2015:

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page)

Issue: When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

United States v. Woods, No. 14-0783/NA (CAAFlog case page)

Issue: Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 18, 2015.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Solis, on Monday, February 23, 2015, at 12:05 p.m. at the George Washington University Law Center, Washington D.C.

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.

The Army Lawyer recently republished a 2002 article by then-Major Timothy C. MacDonnell: Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts (available here).

We’ve kept an eye on the progress of the military commissions at Guantanamo over the years (coverage here). The article provides valuable context to those proceedings.

Here (Feb. 12, 2015), here (Feb. 11, 2015), and here (Feb. 9, 2015) are links to reports from the US v. Khalid Sheikh Mohammed, et al. (9/11 conspirators) Military Commission hearing. NIMJ’s volunteer observer for these hearings was NIMJ President Dru Brenner-Beck.

CAAF will hear oral argument in the Navy case of United States v. Woods, No. 14-0783/NA (CAAFlog case page), on Wednesday, February 25, 2015. The case presents a single issue that addresses the persistent myth that service members give up their constitutional rights when joining the military:

Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual assault in violation of Article 120, UCMJ (2006). The senior member of the panel that convicted Appellant was a Navy captain (O-6) who provided the following written response in a members questionnaire:

The questionnaire asked, “What is your opinion of the military’s criminal justice system?” CAPT Villalobos answered:

There is not [a] perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission. It is a voluntary force and you come into the service knowing that you will be held to this higher standards [sic] and give up your civil rights.

App. Br. at 2. See also Gov’t Br. at 2. The Captain was selected for the panel and questioned extensively by both sides during voir dire. Ultimately, the military judge asked the Captain the following series of leading questions:

MJ: Okay. Captain, going back to your answer to question 20, it appears that you, in fact, arrived at this court-martial with an erroneous understanding of the burden of proof in this case.
CAPT MV: Right.

MJ: Is that fair to say?
CAPT MV: Yes.

MJ: Okay. And your answer also tends to indicate that you might think that there would be a good reason for the military to operate under a system like the one that you presumed that we did.
CAPT MV: Um-huh.

MJ: I want to make sure in my own mind and for the record that you understand that the burden of proof in this case is on the government, that it never shifts to the defense.
CAPT MV: Right. I understand that.

MJ: And that the obligation for a conviction in this case is that the government must prove their case beyond a reasonable doubt. Do you understand that?
CAPT MV: Yes.

MJ: Are you completely comfortable with that?
CAPT MV: Yes.

MJ: You don’t have any reservations in your own mind about following that instruction when I give it to you?
CAPT MV: I don’t have any reservations.

United States v. Woods, No. 201300153, slip op. at 4-5 (N-M. Ct. Crim. App. Jun. 26, 2014) (quoting record at 296-97). The defense challenged the member for cause, the military judge denied the challenge, and the NMCCA affirmed.

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CAAF will hear oral argument in the Navy case of United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page), on Wednesday, February 25, 2015, at 9 a.m. The case presents a single issue regarding the destruction of Appellant’s urine sample one year after it tested positive for the metabolite of cocaine:

When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Appellant was convicted contrary to her pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement and wrongful use of a controlled substance, in violation of Articles 107 and 112a, UCMJ. She was sentenced to reduction to E-3 and a bad-conduct discharge.

Appellant’s positive urinalysis was the result of a routine random urinalysis that occurred while she was under investigation for allegations of child abuse (charges that were later severed from the 107 and 112a offenses). But despite that ongoing investigation, the Government did not preserve the urine sample for possible retesting beyond the standard one-year retention period for a positive sample. Appellant’s brief provides the following timeline:

Mar 7, 2011 – urine sample collected
Mar 14, 2011 – command was informed that sample was positive and that it would be destroyed on March 16, 2012
Mar 16, 2012 – sample destroyed
Mar 28, 2012 – charges preferred
Apr 3, 2012 – government provided initial discovery
Apr 6, 2012 – defense counsel detailed
Jun 18, 2012 – defense counsel asked for retest of sample
Jul 10, 2012 – government notifies defense that sample was destroyed on or about March 16, 2012

App. Br. at 3. The defense moved to suppress the results of the urinalysis due to the destruction of the sample, but the military judge denied the motion. The judge ruled:

After considering all the evidence, the military judge denied the appellant’s motion to suppress. AE XLII. He concluded the following: that the appellant had not met her burden of having shown bad faith on the part of the Government; that the sample was destroyed as part of the NDSL’s normal handling procedures; and, that the appellant had provided no evidence that the retest would have had any exculpatory value. Id. As a remedial measure, however, the military judge instructed the members that the sample was destroyed and that they may “infer the missing evidence would have been adverse to the prosecution.” Record at 892.

United States v. Simmermacher, No. 201300129, slip op. at 4 (N-M. Ct. Crim. App. May 29, 2014). The NMCCA affirmed.

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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 February 25, 2015.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Wednesday, February 18, 2015, at 3:30 p.m., at Baylor Law School in Waco, Texas:

United States v. Sneed,  No. 20131062

Issue: Whether the military judge abused his discretion by accepting Private Sneed’s plea [of guilty] to kidnapping in violation of clause[s] one and two, Article 134, UCMJ, when the holding of Specialist BG was solely a means of force to take her debit card without her consent.

Thursday, February 19, 2015, at 1 p.m., at Fort Hood, Texas:

United States v. Evans, No. 20130647

Issue: Whether the military judge abused his discretion by denying the defense motion to suppress because the Government obtained a statement from 1LT Evans in violation of Article 31, UCMJ.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Richards, No. 38346, on Tuesday, February 17, 2015, at 10 a.m.

Update (February 17, 2015): Due to Joint Base Andrews being closed for the heavy snowfall, oral argument at the Air Force Court of Criminal Appeals in the case of United States v. Richards, No. 38346, has been rescheduled to Wednesday, February 18, 2015, at 1000 hours. Thanks to the reader who sent us this update.

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.

The past few years presented an almost unrelenting stream of child pornography issues affecting military justice. CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding what happens when some of the images supporting a child pornography conviction aren’t actually child pornography, is still somewhat unsettled, as this term CAAF is considering both a granted and a certified issue in United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page).

Additionally, various cases addressed whether certain images are child pornography, such as United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2013) (discussed here); United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014), rev. granted, __ M.J. __ (C.A.A.F. Oct. 23, 2014) (CAAFlog case page) (and related cases discussed here); and United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (discussed here).

Another set of recent cases considered other imagery of minors, such as United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page); and United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

And, of course, the President enumerated child pornography offenses under Article 134 relatively recently: in 2011 (discussed here).

All of this makes court-martial prosecutions in child pornography cases a complex minefield of legal issues. This week’s Scholarship Saturday focuses on the intersection where that minefield meets another: The Confrontation Clause.

Child pornography forces us to re-confront and reevaluate the Confrontation Clause questions that arose in these recent cases, and it also raises new ones. Child pornography possession or distribution cases force the issue because the evidence in a child pornography prosecution consists of a range of evidence types, most of which include business records in the colloquial sense but many of which are not business records that meet the legal standard of the evidentiary exemption. These range from digital data collected routinely in the course of business and without targeting a particular user, to digital evidence collected, labeled, and assembled in preparation for prosecution. The first seems to be textbook business record exception; the second sounds like testimonial evidence that triggers a Confrontation Clause right. In practice, drawing the line between the two is not so clear, and the determinations raise fundamental questions that will apply to digital evidence standards more broadly.

Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31, at 40-40 (2014) (available here).