Audio of Tuesday’s oral argument in United States v. Perkins, NMCCA No. 201700077, is available here.

I’ve written a number of times that charging in the disjunctive (using or) rather than charging in the conjunctive (using and) is wrong. See, for example, this post. Charge in the conjunctive, prove in the disjunctive.

In United States v. Shermot, __ M.J. __, No. 1447 (C.G. Ct. Crim. App. Apr. 11, 2018) (link to slip op.), a three-judge panel of the Coast Guard CCA affirms a conviction of a specification of sexual assault that alleged that the appellant:

committed a sexual act upon AD when she was incapable of consenting due to impairment by an intoxicant, “and that condition was known, or reasonably should have been known,” by Appellant.

Slip op. at 3-4 (quoting charge sheet) (emphasis in original). Writing for the panel, Judge Brubaker explains that in this trial by a military judge alone:

For the first time on appeal, Appellant asserts this use of the disjunctive requires his conviction to be overturned for two reasons.

First, in his assignment of error, Appellant asserts, “Article 120(b)(3)(A) is unconstitutional as applied because it allowed the government to require [Appellant] to defend against two separate and distinct mens rea: actual knowledge (knows) and negligence (reasonably should have known), a violation of due process.” (Appellant’s Brief at 17.) His brief clarifies that the purported unconstitutionality stems from a lack of notice as to which theory of liability he was defending against and a lack of protection from double jeopardy. This is more appropriately addressed as a question of the sufficiency of the specification to provide constitutional notice and protection against double jeopardy than the constitutionality of the statute itself as applied.

. . .

Second, in his reply brief, Appellant, citing United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), posits his verdict is ambiguous because we, in conducting our factual sufficiency review under Article 66(c), UCMJ, cannot ascertain under which mens rea the military judge convicted Appellant.

Slip op. at 4-5.

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Yesterday CAAF reversed convictions in three Hills trailer cases:

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.

No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.

No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 38875. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE’S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.

The reversal in Robertson is particularly significant because the Air Force CCA found the error harmless beyond a reasonable doubt in a published decision. United States v. Robertson, 77 M.J. 518, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (analyzed here).

In Rice the CCA rejected a Government Division assertion that the error was waived, but found it harmless beyond a reasonable doubt because:

Under the particular circumstances of this case, where (1) the military judge did not provide a propensity instruction with conflicting standards of proof, (2) senior trial counsel only briefly mentioned propensity, (3) the Defense conceded the non-consensual touchings occurred, and (4) the military judge instructed on and senior trial counsel argued limited non-propensity uses of the abusive sexual contact offenses evidence, we are satisfied beyond a reasonable doubt that the military judge’s Mil. R. Evid. 413 instruction did not contribute to the verdict.

United States v. Rice, No. 39071, slip op. at 18 (A.F. Ct. Crim. App. Nov. 21, 2017) (link to slip op.)

Campbell was a judge-alone case and so more Hukill trailer than Hills trailer. The CCA issued two decisions in the case – the first was reversed by CAAF for further consideration in light of Hukill (noted here) – and the second opinion found the error harmless based on the strength of the prosecution’s case:

The propensity evidence played very little part in the Government’s case or argument. The senior trial counsel did make a brief mention that Appellant “prior to this assault, demonstrated over a period of months, a desire, a willingness, and a brazen capacity to fondle teenage girls without their consent.” This line of argument, while not particularly persuasive, does assert propensity. Much more persuasive was the Government’s direct evidence of Appellant’s acts, including the testimony of the victims and eye witnesses.

United States v. Campbell, No. 38875, slip op. at 7 (A.F. Ct. Crim. App. Dec. 13. 2017) (link to slip op.).

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF held that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413.

In Lewis v. United States, 76 M.J. 829, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.) (discussed here), a three-judge panel of the Air Force CCA denied a petition for extraordinary relief in the nature of a writ of coram nobis that sought retroactive application of Hills to cases where the appeals are over and the conviction is final.

Now, rejecting a pair of petitions for extraordinary relief, a three-judge panel of the Navy-Marine Corps CCA follows suit and concludes that CAAF’s decision in Hills does not apply retroactively.

First, in Burleson v. United States, __ M.J. __, No. 200700143 (N.M. Ct. Crim. App. Feb. 26, 2018) (link to slip op.), the panel concludes that Hills is non-retroactive and that the petition seeks to reevaluate issues raised (but rejected) during the ordinary appeal. Next, in Pierre v. United, No. 201300257 (N.M. Ct. Crim. App. Mar. 8, 2018) (link to slip op.), the panel applies Burleson while noting that the petitioner was confined (and so should have filed a petition for a writ of habeas corpus).

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Here is a link to a notice in today’s Federal Register about proposed changes to the Joint Rules of Appellate Procedure for Courts of Criminal Appeals (JRAP), in order to “implement the Military Justice Act of 2016 of the National Defense Authorization Act of 2017 and the 2018 Amendments to the Manual for Courts-Martial, United States.”

The proposed changes aren’t published in the Federal Register, but they are available on Regulations.gov at this link.

Public comments are due by May 17, 2018.

CAAF’s daily journal for Friday the 13th of April, 2018, has this entry:

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Appellee’s motion for leave to file a motion to clarify position in response to questions at oral argument is denied.

Prior coverage here.

This week at SCOTUS: The Solicitor General filed this response to the supplemental brief filed in Abdirahman, et al. (the Ortiz trailer cases) (brief noted here), seeking application of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to one of the petitioners. The response includes two noteworthy disclosures:

The government has not yet decided whether to seek further review in Mangahas. Under the circumstances, however, the government does not oppose Briggs’s request that his case be remanded to the CAAF so that the military courts can consider in the first instance his claimed entitlement to relief under that decision.

A cert. petition must be filed within 90 days of a CAAF decision, and I don’t see any docket entry for a petition for reconsideration in Mangahas, so the deadline for a petition from the SG seems to be Friday, May 4, 2018 CAAF denied a Government Division motion for reconsideration on March 15, 2018, so the deadline seems to be May 14, 2018 (because May 13 is a Sunday).

The SG also received an extension of time to file a response to the cert petition in Gray. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on May 1, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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 oral argument schedule shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, April 17, 2018, at 1 p.m., at the Marshall-Wythe School of Law, The College of William & Mary, 613 South Henry St, Williamsburg, VA 23185:

United States v. Perkins, NMCCA No. 201700077

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of conspiracy to commit the offense of larceny and one specification of violating a lawful general order in violation of Articles 81 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 892 (2012). The members sentenced the appellant to reduction to pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the punitive discharge, ordered it executed.

Issue: DID THE MILITARY JUDGE ERR IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE APPELLANT’S HOME ON 1 OCTOBER 2015 AND ALL EVIDENCE DERIVED FROM THAT SEARCH?

Early last year the Army CCA applied CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse convictions involving the sexual abuse of five children and a sentence that included confinement for life, in United States v. Adams, No. 20130693 (A. Ct. Crim. App. Jan. 6, 2017) (link to slip op.). The CCA authorized a rehearing.

A rehearing is a “continuation[] of the original proceedings.” Reid v. Covert, 351 U.S. 487, 491 (1956). Rehearings may occur in full, on only the sentence, or as a combination of a rehearing (in full or sentence-only) with a trial on new charges. See Article 63; R.C.M. 810(a).

When convictions are reversed and a rehearing is authorized – as occurred in Adams – and the convening authority wants to conduct a rehearing, the right thing to do is to refer the original charges to a new court-martial. This is so for practical reasons (the charges still exist and were not dismissed) and because the original charges tolled the statute of limitations (and new charges might be time barred). But the right thing didn’t happen in Adams. Instead, after the CCA reversed the convictions, military prosecutors preferred new charges (in 2017) that were substantially identical to the original charges (preferred in 2012).

Duplicating the original charges was sloppy (at best), but then a staff judge advocate made a complete mess of things:

On the advice of the acting staff judge advocate, the convening authority dismissed “without prejudice” the 2012 charges and referred the 2017 charges to a general court-martial.

At trial, petitioner moved to dismiss the 2017 charges for lack of jurisdiction. Appellant asserted that the convening authority had exceeded the mandate of this court’s remand. The military judge denied the motion and this writ-petition followed.

Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018) (link to slip op.), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).

A three-judge panel of the Army CCA denied Adams’ petition for writs of mandamus and habeas corpus, concluding that Adams failed to meet the burden to justify a writ. Adams has since sought review by CAAF. Yet while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, I think it’s highly unlikely that Adams will be successful in stopping a second trial.

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With a published decision in United States v. Contreras-Ramos, __ M.J. __, No. 20160182 (A. Ct. Crim. App. Jan. 30, 2018) (link to slip op.), a three-judge panel of the Army CCA affirms that morphed images – created by combining elements from multiple sources – can constitute contraband child pornography.

The images at issue were created by the appellant when he “took existing pictures of his daughters, ages eight and thirteen, and made them appear sexual.” Slip op. at 4. He also manipulated images to make them appear to show him committing sexual acts with his daughters. Slip op. at 5.

For these acts he was charged with a novel specification under Article 134 that alleged:

In that Staff Sergeant Fredyshernan Contreras-Ramos, U.S. Army, did, at an unknown location, between on or about 2 July 2012 and on or about 10 June 2014, knowingly and wrongfully create visual depictions of his minor daughters, A.C. and M.C., and other children engaging in indecent conduct, such conduct being of a nature to bring discredit upon the armed forces.

Slip op. at 2. His defense counsel moved to dismiss, asserting that the specification failed to state an offense, but the military judge denied the motion. Contreras-Ramos then pleaded guilty to that offense, to a separate specification of possessing child pornography (other images), and to unauthorized absence. The approved sentence included confinement for four years, reduction to E-1, and a bad-conduct discharge.

Writing for the three-judge panel, Judge Salusollia explains that such morphed images are punishable as contraband child pornography. This specific conviction is reversed, however, because child pornography offenses are enumerated under Article 134 in the MCM (and have been since 2011) and the MCM prohibits using a novel specification to charge conduct covered by an enumerated offense. See United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

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CAAF decided the Air Force case of United States v. Eppes, __ M.J. __, No. 17-0364/AF (CAAFlog case page) (link to slip op.), on April 10, 2018. Resolving challenges to two separate searches, the court unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan writes separately, concurring in part and in the result. Senior Judge Effron dissents in part and would reverse the pleas.

CAAF granted review of two issues:

I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags.

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bags; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.

CAAF unanimously rejects the second issue, with Judge Sparks writing that “the December 7, 2012, search of Appellant’s residence was supported by probable cause and was therefore valid.” Slip op. at 7. Emphasizing that “probable cause is a flexible, commonsense standard,” slip op. at 7 (citation omitted), Judge Sparks explains that the civilian judge who permitted the search “was presented with sufficient facts to reasonably infer evidence of Appellant’s crimes, namely fraud against the government and other offenses, would probably be recovered on a computer in Appellant’s home.” Slip op. at 9 (citation omitted). The entire court, including Judge Ryan and Senior Judge Effron, agrees with that analysis.

But the first issue fractures the court somewhat, with Judge Sparks and the majority applying the inevitable discovery doctrine (while doubting that the exclusionary rule should apply under the circumstances); Judge Ryan finding that even though the search authorization did not explicitly mention Eppes’ bags, the bags were fairly included in the authorization to search Eppes’ person; and Senior Judge Effron finding prejudicial error justifying reversal of the conditional pleas.

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

United States v. Jones, No. 17-0608/AR (CAAFlog case page): Oral argument audio.

United States v. Dinger, No. 17-0510/MC (CAAFlog case page): Oral argument audio.

Three years ago, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page), a divided CAAF held that sexual contact – as defined by Article 120(g)(2) (2012) – includes both body-to-body contact and object-to-body contact.

The alleged object-to-body touching was stethoscope-to-breast contact during examinations performed by First Lieutenant (O-2) Schloff, a physicians assistant. The procedural posture of the case was unusual; Schloff was convicted of one such touching and sentenced to a dismissal, and then the military judge dismissed the specification as failing to state an offense. The Army CCA reversed and CAAF affirmed the CCA, remanding for further proceedings (ordinary Article 66 review).

On remand Schloff alleged that the findings were tainted by unlawful influence because during deliberations two of the members argued that  the Army needed to appear strong on sexual assault issues.

In an unpublished opinion issued in February, a three judge panel of the Army CCA agreed, and it reversed the conviction and authorized a rehearing, concluding:

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . . . was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process.

Allowing this UCI to hover would prejudicially impact the fairness of appellant’s court-marital.

United States v. Schloff, No. 20150724, slip op. at 4 (A Ct. Crim. App. Feb. 5, 2018) (link to slip op.).

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Yesterday, in the wake of the Navy-Marine Corps Appellate Government Division’s unusual Motion to Clarify Position in Response to Questions at Oral Argument in United States v. Barry, No. 17-0162/NA (CAAFlog case page), the Deputy Staff Judge Advocate – Navy Lieutenant Commander Jonathan Dowling – offered an amicus curiae brief in which he argues that neither he nor the Staff Judge Advocate who advised the convening authority committed unlawful command influence.

The brief is available here.

The brief seems to be motivated by the following questions during oral argument at CAAF:

During argument, the Court asked questions about staff judge advocates violating Article 37, UCMJ; two that are especially relevant here. First, “[c]an the Staff Judge Advocate or Deputy Staff Judge Advocate unlawfully influence a convening authority under Article 37?” (Audio Recording, 8:24). And second, what’s to be done “in a situation like this where we have, basically, a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do and then on top of that, a sort of imprimatur added by the TJAG saying the same thing for all the same reasons, it is going to make the Navy look bad, it is going to cause an issue, it is going to cause a problem, even going as far to give incorrect advice? (Audio Recording, 23:38).

Br. at 13-14. Seeming seeking to protect himself from any finding of “a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do,” LCDR Dowling asserts:

what are the limits or how far can the SJA go into a discussion of applicable policies before they violate Article 37, UCMJ? Regardless of the left and right limits, the facts of this case do not support a finding that the SJA or the DSJA violated Article 37, UCMJ here.

Br. at 15. He also argues:

The record does not indicate a tone or argument that could be construed as coercive or an unlawful influence. The record indicates that the SJA and DSJA advice was well within the bounds expected of them and well within the constraints of the law in executing their legal duty to advise the GCMCA. As the timeline above demonstrates, the SJA Office was acting pursuant to RADM Lorge’s expressed intent and direction, albeit an intent that was influenced by his conversations with Commander, Naval Legal Service Command.

Br. at 19.

The brief is filed by civilian counsel representing LCDR Dowling, but nowhere does it – or the accompanying motion to file – state that LCDR Dowling seeks to appear in his personal capacity. Rather, the brief suggests that it speaks for all staff judge advocates in the Navy:

There is no National Association of Staff Judge Advocates, as there is a National District Attorney Association, the National Association of Criminal Defense Lawyers, or similar organization, to represent the broad interests of the staff judge advocate community. Here, Amicus addresses an issue that is important for staff judge advocates Service-wide.

Br. at 2.

Last week, in this post, I discussed a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.

At the time I hoped it was an April Fools Day joke. Seems not.

Barry’s defense counsel responded. The response is available here.

The response argues, in part:

Nowhere in Rule 40 does it permit for parties to supplement their oral argument with written responses eleven days later. “At some point, litigation must come to an end. That point has now been reached.” . . .

Moreover, for several reasons the government has not demonstrated good cause to grant a motion “clarifying” its position, which should more accurately be captioned as a motion to retract no fewer than five case-dispositive concessions.

Mot. at 2 (citation in footnote omitted).

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on May 1, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, I can report that the Army CCA will hear oral argument in at least one case this week, on Wednesday, April 11, 2018, at 10 a.m.:

United States v. Henning, No. 20160572 (prior CAAFlog case page)

Issues:
I. Whether the military judge abused his discretion when he admitted evidence that two other people who were not accused of any misconduct were excluded as possible contributors of DNA found in the alleged victim’s underwear.

II. Whether pulling underwear to the side is legally sufficient to constitute bodily harm for the offense of sexual assault by causing bodily harm.

Disclosure: I represent MAJ Henning in my personal capacity and will argue this case.

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 oral argument schedule shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 17, 2018.