Over a year ago, in this post, I analyzed an unpublished opinion by a panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017).

The case involved the improper use of charged offenses for propensity purposes; a persistent error that CAAF addressed in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), reiterated in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), emphasized as a serious and likely prejudicial error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), and then reiterated again – with exasperation – in United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page), where Chief Judge Stucky (writing for a unanimous court) observed that:

this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue.

77 M.J. at 460 (citing Hukill and Guardado). Left unsaid was that all three cases – four, including Hills – were Army cases.

Sanchez, however, was different in a remarkable way. Staff Sergeant (E-6) Sanchez was tried by a court-martial composed of a military judge alone way back in 2014, long before CAAF decided Hills. The trial even pre-dated the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), which affirmed the use of charged offenses for propensity purposes and was widely accepted as good law (the Air Force and Navy-Marine Corps CCA both reached similar conclusions, and that was our #6 Military Justice Story of 2015). CAAF even denied review in Barnes on July 28, 2015. The military judge in Sanchez did what Barnes later allowed but Hills even later prohibited. Yet the CCA found “no improper use of propensity evidence by the military judge.” Sanchez, slip op. at 1. Furthermore, the CCA found that the defense waived any error by either failing to object or agreeing that the issue was moot. I summarized those finding in the title of my post as:

A panel of the Army CCA presumes that a military judge knows and follows (and that defense counsel makes decisions based on) law that isn’t made yet

Yesterday CAAF returned the case to the Army CCA:

No. 17-0592/AR. U.S. v. Angel M. Sanchez. CCA 20140735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summary disposition), United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018), United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT MISAPPLIED THIS COURT’S CONTROLLING PRECEDENTS IN CONCLUDING: (1) THE MILITARY JUDGE DID NOT CONSIDER EVIDENCE TO COMMIT OTHER CONDUCT, AND (2) DEFENSE COUNSEL “WAIVED” THIS ISSUE BY FAILING TO OBJECT AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

This action is also remarkable, in part because it’s a long time coming (Sanchez petitioned CAAF for review way back on September 15, 2017 (77 M.J. 35)) and in part because it returns the case to the Army CCA for what will be its third review (the CCA issued its first opinion – affirming the findings and sentence – on March 28, 2017, but then granted reconsideration in light of Hukill).

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

On Friday CAAF granted review in this Army case:

No. 18-0305/AR. U.S. v. Michael C. Gleason. CCA 20150379. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT ERRED BY AFFIRMING A NOVEL SPECIFICATION COVERED BY AN ENUMERATED ART. 134, UCMJ OFFENSE.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here but does not discuss this issue or the facts in detail. The novel Article 134 offense appears to be interfering with an emergency call. I’m going to engage in some pure speculation and say that the enumerated offense that might cover the conduct is either disorderly conduct (¶ 73) or communicating a threat (¶ 110). Or both.

This week at SCOTUS: A new petition for certiorari was filed in Dinger v. United States on October 5, 2018. The petitioner is a retired member of the Marine Corps who pleaded guilty to a number of child exploitation offenses, all of which were committed after he entered retired status following the completion of 20 years of enlisted service in the active component. A pretrial agreement provided for suspension of all confinement in excess of eight years, but the agreement did not protect Dinger from a punitive discharge. Such a discharge was adjudged and approved, and CAAF unanimously affirmed that such a punishment is authorized for a retired member in United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page).

The cert. petition doesn’t challenge CAAF’s conclusion that the punitive discharge is authorized. Instead, it asserts that CAAF’s decision is new law that may not fairly apply retroactively to Dinger. The question presented is:

After petitioner’s offenses, the Court of Appeals for the Armed Forces overruled two precedents without fair warning and held that a court-martial can sentence retired Navy and Marine Corps personnel to a dishonorable discharge. Did it violate due process to apply the new rule to him? See Bouie v. City of Columbia, 378 U.S. 347 (1964).

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, October 18, 2018 at 10 a.m.:

United States v. Williams, No. 20160231

Issues:
I. Whether appellant received ineffective assistance of counsel when trial defense counsel knowingly failed to disclose an actual conflict of interest.

II. Whether the military judge erred by admitting hearsay obtained by a multi-disciplinary team led by law enforcement as medical hearsay.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, October 16, 2018, at 1 p.m.:

United States v. Jeter, No. 201700248

Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual harassment, two specifications of drunken operation of a vehicle, three specifications of sexual assault, one specification of extortion, one specification of burglary, two specifications of conduct unbecoming an officer, one specification of communicating a threat, and two specifications of unlawful entry in violation of Articles 92, 111, 120, 127, 129, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 911, 920, 927, 929, 933, and 934 (2016). The appellant was sentenced to twenty years’ confinement and a dismissal. The convening authority approved the sentence as adjudged and, except for the dismissal, ordered the sentence executed.

Issues:
I. After removing minority and female members from a panel, the government must provide a demographic-neutral reason for the removals. The convening authority removed two African Americans and three women from the appellant’s members panel and replaced them with only white men. Was it error to not require a demographic-neutral explanation after the defense objected?

[II]. Evidence admitted under military rule of evidence 404(b) must be materially relevant and the probative value must outweigh the prejudice. The military judge instructed the members they may use evidence that was not materially relevant and invited character inferences to prove intent and motive. Did the military judge err in assessing the material relevance, probative value and prejudicial effect on the evidence?

On Thursday CAAF granted review in this Air Force case:

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here and explains that the appellant – a Lieutenant Colonel – was convicted contrary to his pleas of not guilty of numerous specifications of conduct unbecoming an officer and a gentleman for engaging in indecent online conversations. “The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children.” Slip op. at 2. The appellant separately pleaded guilty in federal district court to wrongfully accessing child pornography.

The CCA concluded:

Here, Appellant chose to express his obscene “fantasies” via the medium of online chats and emails, and analogizes that activity to private conversations within his home which he asserts is protected free speech. Under Moore, such speech is not afforded constitutional protection.

The tension between Moore and Hartwig relied upon by Appellant has no bearing on the issue before us. Here, the court must determine whether Appellant’s online chats and emails were sufficient to constitute conduct unbecoming an officer. The content of Appellant’s online discussions were clearly indecent. The charged conduct need not actually damage the reputation of the military, instead it only has to have a tendency to do so. Although Appellant’s identity as a military member was revealed in the course of the criminal investigation, he did not have to outwardly identify himself as a member of the military for his actions to constitute conduct unbecoming an officer. Appellant’s conduct was disgraceful to himself and the reputation of the military.

Slip op. at 7 (internal citations omitted).

The Judge Advocates Association’s annual Jobs for JAGs event will occur on Thursday, November 29, 2018, at Jenner & Block in Washington, DC.

No additional information is available now, but when available it will be posted on the JAA’s Facebook and LinkedIn pages:

https://www.facebook.com/JudgeAdvocatesAssociationJAA/

https://www.linkedin.com/groups/4458285

This week at SCOTUS: The cert. petition in Condon was denied. The Court requested a response from the Solicitor General in Larrabee. The petition in Andrews was distributed for conference on October 26.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, October 10, 2018 at 10 a.m.:

United States v. Lara, No. 20170025

Issue: Whether the military judge committed plain error by failing to provide a voluntary intoxication instruction.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

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

It’s time again for our annual tradition of end-of-term number crunching.

 

Part I: Overview

CAAF heard oral argument in 36 cases in the 2017 term, resulting in 34 authored opinions of the court and 2 summary dispositions. The court also issued one per curiam decision without hearing oral argument (dismissing the writ-appeal petition in Gray). Summaries of each case, with links to CAAFlog case pages, are on the October 2017 Term page.

That number of oral arguments is about average for the court over the past decade. It’s a significant decrease from the 42 arguments heard last term, but a significant increase from the 28 arguments heard the term before.

CAAF also had a very moderate summary disposition docket. By my count the court issued summary dispositions in 32 cases – a number that is about average (and includes the two summary dispositions in argued cases: Gonzalez-Gomez and Burris).

Of the 34 authored opinions of the court:

  • Chief Judge Stucky wrote 9.
  • Judge Ohlson wrote 9.
  • Judge Ryan wrote 7.
  • Judge Sparks wrote 6.
  • Judge Maggs wrote 3.

Judge Maggs joined the court in the middle of the term, allowing him to participate in only 11 of the 34 authored opinions. Senior Judges Effron, Cox, and Erdmann all participated in cases heard this term prior to Judge Maggs joining the court. None authored a lead opinion, but Senior Judge Effron authored a concurring opinion in 1 case (Robinson (AR)) and a dissenting opinion in 1 case (Eppes), and Senior Judge Cox authored a dissenting opinion in 1 case (Jacobsen).

The 36 cases heard at oral argument break down by service as follows:

  • Air Force: 14 (39%).
  • Army: 16 (44%).
  • Coast Guard: 3 (8%).
  • Navy: 2 (6%).
  • Marine Corps: 1 (3%).

I score the Government divisions as the winner in 21 of the 36 cases heard at oral argument. Those wins, however, include Bailey (where CAAF remanded for a new review of the sentence), Simpson (where CAAF answered the certified question in the negative but found other reasons to affirm the CCA’s decision in part), and Hennis (where CAAF heard oral argument on – and found it lacks authority to grant – a defense motion for resources).

 

Part II: Dissents

Of the 34 authored opinions of the term, 22 were unanimous (no separate opinions). The Government divisions prevailed in 14 (64%) of those 22 unanimous opinions.

An additional 3 cases involved only separate concurring opinions, for a total of 25 authored opinions with no dissents (74% of the total of 34 authored opinions). The Government divisions prevailed in 16 (64%) of those 25.

The other 9 authored decisions produced a total of 9 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 3 times and wrote 3 dissenting opinions.
  • Judge Ryan dissented 2 times and wrote 1 dissenting opinion.
  • Judge Ohlson dissented 3 times and wrote 3 dissenting opinions.
  • Judge Sparks dissented 1 time but did not write separately.
  • Senior Judge Effron dissented 1 time and wrote 1 dissenting opinion.
  • Senior Judge Cox dissented 1 time and wrote 1 dissenting opinion.

6 cases drew just 1 dissenting vote (Jacobsen, Harpole, Robinson (AF), Eppes, Barker, and Hardy), and 3 cases drew 2 dissenting votes (Short, Jerkins, and Barry). The dissenting opinion in Barry, however, is a little unusual. Authored by Judge Ryan and joined by Judge Maggs, the opinion is styled as a dissent but agrees with the majority that the conviction must be reversed. Accordingly, it gets special attention in the remainder of these stats.

The dissenters slightly favored the Government divisions. There were a total of 11 dissenting votes in the 9 cases with dissents. The Government divisions got 6 of those 11 votes, as follows:

  • Chief Judge Stucky dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Ryan dissented 2 times, siding with the defense in both.
  • Judge Ohlson dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Sparks dissented 1 time, siding with the Government division.
  • Senior Judge Effron dissented 1 time, siding with the Government division.
  • Senior Judge Cox dissented 1 time, siding with the defense.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents. In order of least-dissenters to most:

  • Judge Sparks wrote for the court in 6 cases, drawing 1 dissent (and 1 concurring opinion).
  • Judge Maggs wrote for the court in 3 cases, drawing 1 dissent (and 2 concurring opinions).
  • Judge Ryan wrote for the court in 7 cases, drawing 2 dissents.
  • Judge Ohlson wrote for the court in 9 cases, drawing 2 dissents (and 2 concurring opinions)
  • Chief Judge Stucky wrote for the court in 9 cases, drawing 3 dissents.

If there’s an award for the most dissents, Chief Judge Stucky wins it for the second year in a row. But two years ago (in the 2015 Term) then-Judge Stucky dissented the most but was the least likely to draw dissents when he wrote for the court.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 out of 34 cases with authored opinions (91%). Chief Judge Stucky voted for the Government division in 21 (62%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories. 1 of those dissents, however, was in Barker, where Judge Stucky agreed that the Government division should win but he dissented because he would find the issue waived (he also dissented in Harpole, where the defense won).

Judge Ryan wrote a total of 9 opinions this term: 7 opinions of the court, 1 concurring opinion, and 1 dissenting opinion. She was with the majority in 33 (97%) out of 34 cases with authored opinions (including Barry, even though she dissented, because of the relief she would have granted). Judge Ryan voted for the Government division in 22 (65%) of those 34 cases, and dissented in none of the Government divisions’ 21 victories (her only dissent was in Jerkinswhere she disagreed with the relief the court granted to the defense).

Judge Ohlson wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 (91%) out of 34 cases with authored opinions. Judge Ohlson voted for the Government division in 20 (59%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories (Hardy and Short) (he also dissented from the defense victory in Jerkins).

Judge Sparks wrote a total of 6 opinions this term: 6 opinions of the court, 0 concurring opinions, and 0 dissenting opinions. He was with the majority in 32 (97%) out of 33 cases with authored opinions (he recused himself from Barry). Judge Sparks voted for the Government division in 20 (61%) of those 33 cases, dissenting in 1 of the Government divisions’ 21 victories (Short).

Judge Maggs participated in only 11 of the 34 cases with authored opinions. He wrote a total of 4 opinions this term: 3 opinions of the court, 1 concurring opinion, and 0 dissenting opinions. He was with the majority in all 11 cases (including Barry, even though he joined Judge Ryan’s dissenting opinion, because of the relief he would have granted). Judge Maggs voted for the Government division in 7 (64%) of those 11 cases, dissenting from none of the Government divisions’ victories in which he participated.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 11 of the 36 cases (31%) argued at CAAF this term: (Guardado, Riesbeck, Honea, Mangahas, Jerkins, Condon, Carpenter, EppesKelly, Hardy, and Burris). That includes Mr. Mizer’s argument in Honea, even though Mr. Mizer argued the case in his official capacity as a civilian employee of the Air Force Defense Appellate Division.

Of those 11 arguments by civilian counsel, the defense won in 7 (64%).

In cases argued by military appellate defense counsel, the defense won in 8 out of 25 (32%).

On the Government division side one civilian attorney argued and won one case (Bailey).

Of the 8 cases where military defense counsel argued and won:

So the oral argument success rates for military defense counsel at each of the four appellate defense divisions, from best to worst, was:

  • Coast Guard Appellate Defense: 1 out of 2 (50%).
  • Army Appellate Defense: 4 out of 12 (33%).
  • Navy-Marine Corps Appellate Defense: 1 out of 3 (33%).
  • Air Force Appellate Defense: 2 out of 8 (25%).

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: JacobsenKatso, and Simpson. Of those 3 cases, 2 were from the Army and 1 was from the Air Force.

The Government division won two out of the three.

CAAF also issued summary dispositions in two cases with certified issues: Gould (Army) and Hale (Marine Corps). In both cases CAAF rejected the certified issues.

CAAF specified issues for oral argument in 3 cases: Condon, Robinson (AR), and Riesbeck. The specified issues were dispositive in all three cases.

 

Part VI: The Courts of Criminal Appeals

Of the 36 cases heard at oral argument in the 2017 term, the CCAs were represented as follows:

  • 14 (39%) were from the Air Force CCA.
  • 16 (44%) were from the Army CCA.
  • 3 (8%) were from the Coast Guard CCA.
  • 3 (8%) were from the Navy-Marine Corps CCA.

One of those 36 arguments, however, was the motion in Hennis that didn’t involve direct review of a CCA’s decision.

Of the 35 oral arguments involving review of a CCA’s decision:

  • The Air Force CCA was reversed in 5 out of 14 cases (36%).
  • The Army CCA was reversed in 8 out of 15 cases (53%) (includes a partial reversal in Simpson).
  • The Coast Guard CCA was reversed in 3 out of 3 cases (100%) (includes partial reversals in Harpole and Bailey).
  • The Navy-Marine Corps CCA was reversed in 1 out of 3 cases (33%).

CAAF also reversed 11 CCA decisions by summary disposition (including 1 partial reversal in Tinsley). Of those 11 summary reversals:

  • 5 were from the Air Force CCA (3 Hills trailers and 1 Commisso trailer).
  • 5 were from the Army CCA (3 Hills trailers and 1 Burris trailer).
  • 1 was from the Navy-Marine Corps CCA (Tinsley).

Note: I scored the following summary dispositions as reversing a CCA: Tinsley, Robertson, Rice, Campbell, Frank, Brown, Thompson, Moynihan, Hoffmann, Marcum, and Hughes. Perhaps the list could be longer. One case not on my list is McGinn, where CAAF reversed the Army CCA’s finding of waiver but otherwise affirmed the CCA’s decision. Another case not on my list is Preston, where CAAF reversed an Air Force CCA ruling on a motion for reconsideration filed in connection with a petition for a new trial. I had to draw the line somewhere.

 

Part VII: Extraordinary Relief

CAAF considered 18 petitions for extraordinary relief during the 2017 term. All were denied in one form or another.

Two of the 18 are particularly noteworthy: Gray and Roberts.

In Gray, CAAF issued a per curiam opinion dismissing a writ-appeal with prejudice. United States v. Gray, 77 M.J. 5 (C.A.A.F. Nov. 13, 2017) (per curiam) (CAAFlog case page). I interpreted that decision (in posts here and here) as casting doubt on the continued viability of the Supreme Court’s holding in United States v. Denedo, 556 U.S. 904, 912-913 (2009), that the military appellate courts have jurisdiction to conduct collateral review of courts-martial. Gray then sought certiorari, and the Solicitor General filed a brief opposing certiorari but making this concession:

The government agrees with petitioner that, under this Court’s decision in United States v. Denedo, 556 U.S. 904 (2009), the military courts have subject-matter jurisdiction to entertain such requests for coram nobis relief and that the CAAF erred in concluding othe[r]wise.

Br. at 12. SCOTUS denied the petition but the SG’s concession (probably) keeps Denedo alive.

In Roberts, CAAF dismissed a writ-appeal on the basis that it was really a late petition for a new trial:

No. 18-0177/AR. Rob W. Roberts, Appellant v. United States, Appellee. CCA20180005. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.*

* Although styled as a petition for extraordinary relief in the nature of a writ of error coram nobis, this is a request for a new trial in which the statutory period for filing such claims has expired.

CAAF’s decision affirmed the similar action of the Army CCA (analyzed here).

 

Part VIII: A Preview of the 2018 Term

CAAF begins the 2018 term with 19 cases on its docket. Those include one capital appeal (Hennis) that was docketed last year and in which CAAF’s review is mandatory. It also includes one case remanded by the Supreme Court (Briggs), and two certified cases (Cooper and Perkins).

The court already heard oral argument in two cases in the 2018 term: Eugene and Criswell. The arguments were heard before the official start of the term as part of CAAF’s Project Outreach.

Other notable cases include CAAF’s grant of review (with no briefing ordered) in a Navy case (Greening) that involves successive prosecutions and the separate sovereigns doctrine. The Supreme Court is reconsidering the doctrine in Gamble v. United States, No. 17-646 (link to docket page). The doctrine is also at issue in Hennis.

CAAF also granted review in another Navy case (Forbes) where the appellant pleaded guilty to sexual assault by causing bodily harm for failing to inform his sexual partners of his HIV-positive status. That case might cause CAAF to reconsider its ultimate holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015).

And the long running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq, will be reviewed by CAAF for a third time.

Also returning to CAAF is Tucker, which questions whether negligence is a sufficient mens rea for a violation of Article 134.

Other recent grants can be reviewed in our CAAF Grants category.

CAAF’s schedule includes 24 oral argument dates for the 2018 term – a somewhat average number that is fewer than the 30 scheduled argument days for the 2017 term (of which only 19 were used) and the 27 scheduled argument days in the  2016 term (of which only 23 were used). CAAF typically hears two oral arguments per day, suggesting that it anticipates hearing about 45 oral arguments in the 2018 term. That’s consistent with the court’s oral argument workload over the past decade, as shown by this chart from CAAF’s FY17 Annual Report:

As always, we will track and analyze the court’s activity as the term develops.

This week at SCOTUS: The cert. petition in Larrabee was distributed for conference on October 12, 2018, and the Solicitor General waived the right to respond to the cert. petition in Andrews.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Thursday, October 4, 2018:

At 10 a.m.:

United States v. Thompson, No. 20170150

Issue: Whether government counsel committed prosecutorial misconduct when they used perjured testimony that affected the judgment of the panel.

At 11:30 a.m.:

United States v. Jessie, No. 20160187

Issue: Whether military correctional complex standard operating procedure 310, “sex offender contact with minor children,” unlawfully increases appellant’s sentence by precluding appellant from contacting his children in violation of appellant’s fifth and first amendment rights.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 2, 2018, at 1 p.m.:

United States v. Jennings, NMCCA No. 201700241

Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of six specifications under Article 80, Uniform Code of Military Justice (UCMJ), and one specification of solicitation under Article 134, UCMJ. The members sentenced the appellant to three years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

Issues:
[I]. Whether the government failed to disprove the defense of entrapment—that the Naval Criminal Investigative Service agent did not induce the appellant or that the appellant was predisposed to commit this crime.

[II]. The government cannot use liberty risk as a subterfuge for restriction. Here, the government held the appellant on liberty risk, which restricted him to base, for 732 days (513 days prior to arraignment). Did the government’s actions constitute restriction under Rule for Courts-Martial 304(a)(2) and trigger Rule for Courts-Martial 707?

[III]. The Sixth Amendment guarantees a servicemember the right to effective assistance of counsel. The appellant spent 732 days in restriction, which started the government’s Rule for Courts-Martial 707, 120-day clock. Were trial defense counsel deficient by failing to assert the appellant’s speedy trial rights?

The Silver CAAF Tongue award, while lacking physical manifestation, is a life-changing honor bestowed upon the attorney who argued the most cases at CAAF during the term. Past winners can be seen here.

This term’s winner is Major Tyler B. Musselman of the Air Force Appellate Government Division, who argued four cases at CAAF: Pugh, Honea, Katso, and Robinson.

It is the sixth year in a row that an Air Force attorney wins the award.

Congratulations to Major Musselman!

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. The topic remains at CAAF, with a decision earlier this year in United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page) (re-affirming that negligent dereliction of duty is punishable under Article 92), and with a (second) grant of review in United States v. Tucker, No. 18-0254 (CAAFlog case page).

On Tuesday CAAF granted review in another case involving mens rea:

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The case seems to involve the mens rea required to commit sexual assault by causing bodily harm, where the bodily harm is a non-consensual sexual act, in violation of Article 120(b)(1)(B). The facts of the case, however, make it a poor vehicle for that issue. Private First Class McDonald was convicted of sexual assault and conspiracy to commit sexual assault based on an allegation that he concealed his identity in order to have sex with a woman who believed that she was having sex with another soldier. Considering such deliberate action, the CCA concluded:

Here, appellant’s misconduct of having sexual intercourse with DJ without her consent was at the very least reckless, but more likely purposeful. . . .

Based on the evidence contained in the record, it is clear appellant exploited the cover of darkness to conceal his identity from DJ as he switched places with PV2 Thomas and engaged in nonconsensual sexual intercourse with DJ. We thus conclude appellant’s misconduct was done knowingly if not, at the very least, reckless and that any lack of instruction on the scienter of recklessness was not plain error.

Slip op. at 5.

In other words, if the CCA’s recitation of the facts is even remotely accurate, it’s hard to see how McDonald’s conduct was otherwise lawful.

This week at SCOTUS: A petition for certiorari (available here) was filed in Andrews v. United States, No. 18-343, on September 13th.

In United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page), CAAF unanimously rejected the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, and found any improper argument by the prosecution in the case to be harmless. The cert petition challenges CAAF’s application of the harmless error test, asserting that “CAAF does not adequately distinguish between the improper arguments of military prosecutors that infringe on an accused’s constitutional rights and those that do not.” Pet. at 3.

In other news, the Solicitor General waived the right to respond to the cert. petition in Larrabee

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

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

Wednesday, September 26, 2018, at 10 a.m.:

United States v. Rice, No. 20160695

Issues:
I. DID THE MILITARY JUDGE ERR BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE?

II. DID APPELLANT WAIVE A CLAIM FOR RELIEF FROM THIS COURT THAT THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, WHEN APPELLANT RECEIVED HIS REQUESTED RELIEF FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WHEN THAT COURT DISMISSED APPELLANT’S CONVICTION OF THESE OFFENSES?

III. EVEN IF THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE AND APPELLANT DID NOT WAIVE THE ISSUE, WHAT ERROR EXISTS AT THIS TIME WHICH MATERIALLY PREJUDICES APPELLANT’S SUBSTANTIAL RIGHTS WHEN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HAS DISMISSED APPELLANT’S CONVICTION TO THE SAME POSSESSION OF CHILD PORNOGRAPHY ON DOUBLE JEOPARDY GROUNDS?

Wednesday, September 26, 2018, at 3:45 p.m.:

United States v. Turner, No. 20160131

Issues:
I. WHETHER SPECIALIST TURNER’S CONVICTION FOR OBSTRUCTION OF JUSTICE IS FACTUALLY INSUFFICIENT.

II. WHETHER THE GOVERNMENT IMPERMISSIBLY PRESENTED CONFLICTING THEORIES OF LIABILITY AT THE TRIALS OF SPECIALIST TURNER AND HIS CO-ACCUSED.

Thursday, September 27. 2018, at 2 p.m.:

United States v. Hasan, No. 20130781

Issues:
I. WHETHER APPELLATE COUNSEL SHOULD BE PERMITTED TO REVIEW THE FOLLOWING SEALED APPELLATE EXHIBITS:  APP. EX. 41; APP. EX. 334; APP. EX. 336; APP. EX. 347, ENCLS. 1-3; APP EX. 348; APP EXS. 352-352; APP EX. 389; APP EX. 390; APP EX. 397; APP. EX. 426; AND TRIAL TRANSCRIPT PAGES 2195-2208.  SPECIFICALLY, COUNSEL SHOULD ADDRESS THE POTENTIALLY PRIVILEGED NATURE OF THESE EXHIBITS UNDER MIL. R. EVID. 502.

II. WHETHER APPELLANT SHOULD BE GRANTED THE ASSISTANCE OF LEARNED COUNSEL ON APPEAL. COUNSEL SHOULD BE PREPARED TO ADDRESS THE NECESSITY, AVAILABILITY AND FEASIBILITY OF APPOINTING LEARNED COUNSEL.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

Audio of last week’s project outreach oral arguments is available at the following links:

United States v. Eugene, No. 18-0209/AR (CAAFlog case page): Oral argument audio

United States v. Criswell, No. 18-0091/AR (CAAFlog case page): Oral argument audio

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

The 6th annual Joint Appellate Advocacy Training is two and a half days of training provided by appellate experts, with breakout sessions for government, defense, and victims counsel. It will occur next week, Tuesday – Thursday, September 18-20, 2018 at Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA.

All interested civilian attorneys, judge advocates and paralegals are invited to attend. Registration is free and will occur at the door. CLE credit may be available.

Here is the current agenda (subject to change) (updated) and here is a map that might help you get there.

The Fourth Amendment generally requires law enforcement obtain a warrant prior to seizing or searching property, and the warrant must be based on probable cause. Any evidence discovered in violation of those requirements may be excluded from trial. Such exclusion is not required by the Fourth Amendment, but rather is a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through [a] deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). That exclusionary rule is codified in the Military Rules of Evidence with the caveats that such exclusion must “result[] in appreciable deterrence,” and “the benefits of such deterrence [must] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

But there are exceptions. One exception – also codified in the Military Rules of Evidence – involves a warrant (or military search authorization) that is somehow flawed. If a warrant is issued by competent authority with a substantial basis for finding probable cause, but is later determined to be invalid, the exclusionary rule does not apply if law enforcement “reasonably and with good faith” relied on the warrant to conduct the search or seizure. Mil. R. Evid. 311(c)(3). This good faith exception to the exclusionary rule recognizes that there is no deterrent effect, and so no justification for the practical cost of excluding evidence of wrongdoing, when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). In other words:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, however, doesn’t seem to involve the officer actually conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if a warrant is invalid and there was no substantial basis to find probable cause to issue it, then the good faith exception does not apply no matter what the officer thought.

It’s a rule that swallows the exception, because an officer might rely on a warrant to conduct a search, and that reliance might be objectively reasonable, but the exception won’d apply if later analysis reveals that there was no basis for finding probable cause to issue the warrant. CAAF addressed this issue in United States v. Carter, and observed that the substantial basis requirement in Mil. R. Evid. 311(c)(3)(B) would – if applied as written – “effectively abolish the good faith exception in military practice.” 54 M.J. 414, 421 (C.A.A.F. 2001). CAAF then decided to interpret the requirement narrowly:

“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.

Carter, 54 M.J. at 422. Put differently, if the officer exercising the warrant objectively believes that there was a substantial basis for finding probable cause to issue the warrant, then the officer acts in good faith and the exception may apply. If, however, the officer knows or should know that there wasn’t a substantial basis to find probable cause, but nevertheless exercises the warrant, then the officer is not acting in good faith and the exception won’t save the evidence from exclusion.

That interpretation was relatively settled until CAAF unsettled it in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page). Hoffmann was accused of committing indecent liberties with children, and a military commander authorized a search of Hoffman’s electronic devices for child pornography based on “an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” 75 M.J. at 123. CAAF rejected that intuitive link as a basis for probable cause and invalidated the authorization (and reversed Hoffmann’s convictions). But CAAF also rejected application of the good faith exception, concluding that:

the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception.

75 M.J. at 128. That conclusion is contrary to the holding from Carter that focused the analysis on what the law enforcement officer knew or should have known about the basis for finding probable cause (and not on whether there actually was a substantial basis for finding probable cause).

CAAF acknowledged its inconsistency the following year, in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), where it summarily concluded that the Army Government Appellate Division failed to establish that the good faith exception applied while observing (in a footnote) that:

We recognize the tension between our discussion of the good-faith doctrine in Hoffmann, 75 M.J. at 127-28, and Carter, 54 M.J. at 419-22. We leave for another day resolution of this tension because we conclude that under either understanding of the good-faith doctrine the Government has not met its burden of establishing this exception to the exclusionary rule in Appellant’s case.

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017).

That day has come:

No. 18-0365/MC. U.S. v. Calvin E. Perkins, Jr. CCA 201700077. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THIS COURT’S HOLDING IN UNITED STATES v. CARTER AS APPLIED BY THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS IN THIS CASE, INSTEAD OF THE PLAIN READING OF MRE 311(c) THIS COURT APPLIED IN UNITED STATES v. HOFFMANN, CONTROLS IN ANALYZING THE APPLICABILITY OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE.

II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF APPELLANT’S HOME.

The NMCCA issued a published decision in Perkins (available here) that concluded:

Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with the rule’s plain language, and Hoffmann’s plain-language approach is therefore inconsistent with Carter. . . .

We conclude that we are still bound by Carter. We are reluctant to assume that the CAAF has tacitly reversed its own precedent. Hoffmann made no mention of Carter and did not purport to change any precedents binding on this court. . . .

United States v. Perkins, __ M.J. __, __, No. 201700077, slip op. at 13-14 (N.M. Ct. Crim. App. Jul. 12, 2018). The CCA then found that the good faith exception applies to the case and affirmed the findings and the sentence, but it observed that its “choice of authorities determines the outcome of this issue” and “under Hoffman, the evidence does not qualify for the exception.” Slip op. at 10-11. Furthermore, it “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R. EVID. 311(c)(3).” Slip op. at 20 (emphasis added).

The JAG’s certification of this issue – that the Government Division won at the CCA – is unusual, but not unprecedented. The Navy JAG previously certified an issue at the request of the defense as recently as 2016. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page).