Back in March the Air Force CCA granted a Government appeal under Article 62 in United States v. Pugh, No. 2016-11 (Mar. 10, 2017) (link to slip op.). The case involves an Air Force major who was convicted of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

Slip op. at 2. AFI 90-507 (available here) (link corrected) is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced the Major to a dismissal and the court-martial was adjourned. Nineteen days later:

the military judge granted the defense motion to dismiss the Additional Charge and its Specification. In so doing, he issued a six-page ruling. The military judge concluded that the specification did allege an offense and gave fair notice to Appellee. However, the military judge then held that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The military judge then dismissed the Additional Charge and its Specification.

Slip op. at 2-3. The military judge had the power to do this because the record had not yet been authenticated. See R.C.M. 905(f).

The prosecution appealed and the Air Force CCA reversed, concluding:

As the military judge found, as fact, that it was possible that a “false positive” could result from manufacturing process defects, purchase of hemp products overseas, or purchase of hemp products over the Internet, it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program. Military jurisprudence has long recognized the “disastrous effects” of illicit drug use by members of the armed forces. Similarly, the critical nature of the drug testing program in the “military’s efforts to ferret out drug abuse and thereby insure [sic] the health and readiness of its members” as well as deter drug abuse is also well-established.

Slip op. at 6 (citations omitted) (marks in original) (emphasis added).

Yesterday CAAF granted review:

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. 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 the petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant’s brief on this issue shall be filed within 20 days of the date of this order. Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief. A reply may be filed by Appellant within 5 days of Appellee’s brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

CAAF decided the Coast Guard case of United States v. Ramos, __ M.J. __, No. 17-0143/CG (CAAFlog case page) (link to slip op.), on Wednesday, July 19, 2017. The court finds that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so. Accordingly, the military judge erred in failing to suppress Ramos’ statement, and the Coast Guard CCA erred in affirming that ruling.

Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.

CAAF granted review to determine:

Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.

The convictions related to Ramos’ civilian wife’s efforts to start a business manufacturing marijuana under Washington State’s recreational marijuana law. Such a business, however, violates federal civil and military law. The business failed, and the wife’s business partner (named Hart) made threats. Ramos reported those threats to his chain of command and was then interviewed by CGIS. Despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview. Ramos then made statements that were admitted against him during his court-martial.

The military judge denied a defense motion to suppress, concluding that there was “no requirement to give Ramos his Article 31(b) rights because [the agent] was not conducting a law enforcement or disciplinary inquiry, but was instead focused on ‘force protection.'” Slip op. at 4. The Coast Guard CCA affirmed, concluding that “the agents’ questions were focused on identifying and mitigating the threat.” Id.

In today’s opinion a majority of CAAF rejects this conclusion, finding instead that this case presents “a classic ‘mixed purpose'” of both force protection and a disciplinary inquiry. Slip op. at 7. The majority then concludes that the circumstances of the questioning “reflect[] conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. ” Slip op. at 8. It also rejects the operational context exception, finding that “there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings.” Slip op. at 11. But CAAF only reverses Ramos’ conviction of making a false official statement because “Ramos has not challenged his convictions on the drug-related offenses.” Slip op. at 11.

Judge Stucky’s dissent reaches the opposite conclusion on the purpose of the interview, finding that it “was not done for a law enforcement or disciplinary purpose” and so no warning was required. Diss. op. at 3.

Read more »

On June 26, 2017, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 was filed in Rich v. Stackley, Secretary of the Navy, No. 3:17-cv-01298-GPC-JMA. A copy of the petition is available here.

The petitioner was a petty officer in the Navy who, in 2014, was convicted of multiple child sexual offenses and sentenced to confinement for seven years and a dishonorable discharge. The NMCCA affirmed the findings and sentence in 2015 (link to slip op.). CAAF denied review in 2016.

The habeas petition makes three claims. First, it asserts that a court-martial member was dishonest during voir dire, depriving the petitioner of a fair and impartial panel. Second, it asserts that a statement was improperly admitted into evidence under hearsay exceptions. Finally, it asserts that the convictions are factually and legally insufficient. The NMCCA analyzed and disagreed with each of these assertions of error.

Last week the district court ordered a response to the petition. A copy of the order is here. A news headline (here) claims that this order “Overrules Military Court, Reopens Molestation Case,” but that’s totally false. The order is a routine scheduling order under Fed. R. App. P. 21(b)(1). The order also mixes up the parties, naming Stackley as the petitioner.

The petition faces incredibly long odds because the three claims were already considered by the CCA. In Burns v. Wilson the Supreme Court explained that:

The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. . . . these provisions do mean that, when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to reevaluate the evidence.

346 U.S. 137, 142 (1953). Put differently, “had the military courts manifestly refused to consider [the] claims, the District Court was empowered to review them de novo.” Id. But “it is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. at 144.

The petition in Rich does not explain why the CCA’s consideration of the issues was either a manifest refusal to consider the claims or not a fair consideration of the claims.

CAAF docketed this certification on Friday:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, [sic] and a supporting brief were filed under Rule 22 on this date on the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS IMPERMISSIBLY EXCEEDED THE LIMITATIONS OF ITS AUTHORITY ON REMAND FROM THIS COURT BY CONDUCTING A FACTUAL SUFFICIENCY REVIEW.

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING SPECIFICATION 1 OF CHARGE II FACTUALLY AND LEGALLY INSUFFICIENT.

III. WHETHER NUDITY IS A PER SE REQUIREMENT FOR AN IMAGE TO CONSTITUTE A “LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA” IN 18 U.S.C. § 2256(8)(A).

The reference to Article 62 (authorizing Government interlocutory appeals) is an error; this is not an Article 62 case.

This is the second trip to CAAF for this case. The case was previously a trailer to United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). In Blouin, CAAF considered the adequacy of a guilty plea to wrongful possession of child pornography in a case where the images in the record showed only a child posing provocatively in undergarments; none depicted sexual activity or full nudity. The Army CCA had – in a published opinion – affirmed the guilty plea by holding that “nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area under Title 18 of the United States Code or Article 134, UCMJ.” 74 M.J. at 249 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)). That holding was an adoption of the holding in Knox, which is a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography as it applies to non-nude images. But a bare majority of CAAF rejected adoption of Knox, and reversed the guilty plea under circumstances that suggest (without actually holding) that nudity is a required component of child pornography. The dissenters, however, decried that “it should not be this hard to plead guilty to possessing child pornography.” 74 M.J. at 257. In a court-martial, no less.

The images in Gould were also non-nude (the child was made to pose in underwear). The CCA originally affirmed the child pornography conviction in Gould by applying its prior decision in Blouin. CAAF granted review (noted here) and summarily reversed (noted here) “for further consideration in light of Blouin.” 75 M.J. 22. CAAF then rejected a Government request for reconsideration. 75 M.J. 35.

Read more »

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: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, July 20, 2017, at 10 a.m.:

United States v. Motsenbocker, No. 201600285

Case Summary: A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of abusive sexual conduct and one specification of sexual assault, each in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The members sentenced the appellant to confinement for six months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and ordered it executed.

Issues:
I. THE GOVERNMENT IS REQUIRED TO PROVIDE FAIR NOTICE OF THE CHARGE AN ACCUSED MUST DEFEND AGAINST. HERE, THE GOVERNMENT CHARGED THE CASE AS A VIOLATION OF ARTICLE 120(B)(1)(B), UCMJ, BUT ARGUED A THEORY OF LIABILITY UNDER ARTICLE 120(B)(3)(A), UCMJ. WAS THIS A FAILURE OF FAIR NOTICE?

II. THE MILITARY JUDGE IS REQUIRED TO PROVIDE ACCURATE INSTRUCTIONS TO MEMBERS. HERE, THE MILITARY JUDGE INSTRUCTED MEMBERS ON CONSENT FOR ARTICLES 120(B)(1)(B) AND 120(D) , UCMJ, USING DEFINITIONS FOR CONSENT IN RELATION TO THE ARTICLE 120(B)(3)(A) , UCMJ, INCAPACITY ELEMENT. WAS THIS INSTRUCTIONAL ERROR BY THE MILITARY JUDGE?

III. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. TRIAL COUNSEL ARGUED THE NEED TO RELY ON BYSTANDER INTERVENTION AND NAVY TRAINING ON SEXUAL ASSAULT CONTRARY TO THE MILITARY JUDGE’S PRELIMINARY INSTRUCTION. ADDITIONALLY, TRIAL COUNSEL REPEATEDLY CALLED THE APPELLANT A LIAR, BOLSTERED THE ALLEGED VICTIM’S TESTIMONY, MISCHARACTERIZED EVIDENCE, INSERTED PERSONAL OPINION IN THE ARGUMENT AND SHIFTED THE BURDEN TO DEFENSE. WAS THIS PROSECUTORIAL MISCONDUCT?

IV. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT. TRIAL COUNSEL ARGUED A THEORY OF LIABILITY THAT THE ACCUSED WAS NOT CHARGED WITH. HE DID THIS BY PROPERLY ARGUING THE VICTIM HAD CAPACITY TO CONSENT UNDER THE CHARGED OFFENSES OF ARTICLES 120(B)(1)(B) , AND 120(D), UCMJ, WHILE ALSO IMPROPERLY ARGUING THAT THE VICTIM DID NOT HAVE THE CAPACITY TO CONSENT UNDER AN UNCHARGED OFFENSE OF ARTICLE 120(B)(3)(A), UCMJ. WAS THIS PROSECUTORIAL MISCONDUCT?

Over 120 years ago, in Brown v. Walker, 161 U.S. 591, 596 (JUSTIA) the Supreme Court explained that the Founders created the Fifth Amendment’s right against self-incrimination as a “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system.” Specifically, the Court noted:

[The Fifth Amendment was created to protect an accused from] the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . [which] made the system so odious as to give rise to a demand for its total abolition.

Id. at 597.

Seventy years later, the Supreme Court found that the Fifth Amendment’s purpose – abolishing “inquisitorial” police practices – had yet to be satisfied. Accordingly, the Court issued its decision in Miranda v. Arizona, 384 U.S. 436 (1966) (oyez).

Read more »

Yesterday CAAF granted review of an oddly-worded issue involving Mil. R. Evid. 412 – the military’s rape shield rule:

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. 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 THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN LIMITING THE CROSS-EXAMINATION OF THE COMPLAINING WITNESS UNDER MILITARY RULE OF EVIDENCE 412 ON AN ISSUE SHOWING THAT APPELLANT’S SUBJECTIVE MISTAKE OF FACT AS TO THE COMPLAINING WITNESS’S AGE WAS OBJECTIVELY REASONABLE.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. The appellant’s defense was that he mistakenly believed the boy was 16. To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts soliciting sexual encounters in which he claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Considering this, it’s strange that the granted issue challenges both the CCA’s limitation of cross-examination (when it was the judge) and the invocation of Mil. R. Evid. 412 (when the real issue seems to be relevance).

Another 412 issue on CAAF’s docket for next term is the constitutionally-required exception to the rule, which will be considered in United States v. Robinson, No. 17-0231/AR (grant discussed here).

CAAF decided the Air Force case of United States v. Richards, __ M.J. __, No. 16-0727/AF (CAAFlog case page) (link to slip op.), on Thursday, July 13, 2017. The court holds that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search. Applying that rule to the facts of this case, CAAF affirms the military judge’s ruling that admitted the fruits of the search of the appellant’s electronic media, the decision of the Air Force CCA, and the appellant’s convictions.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards to confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.

The charges arose after a former participant in a Big Brothers of America program alleged that he was sexually assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship between Richards and another minor and involving electronic communications. That evidence supported a search authorization “for Appellant’s residence and person for items used to electronically communicate with [the minor].” Slip op. at 3. Numerous devices and hard drives were seized and sent to the Defense Computer Forensic Laboratory (DCFL) for extraction, whereby a software program “goes through the image – the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it pulls them all out and throws them into a directory on a new drive.” Slip op. at 4 (quoting examiner). “DCFL simply dumped all pictures and on-line chats from these [multiple] drives onto one big drive for review.” Slip op. at 4 (quoting a Special Agent). While searching the compiled extracted materials, the investigator discovered suspected child pornography and obtained new search authorizations. Subsequent investigation revealed more images, leading to Richards’ convictions.

Richards moved to suppress the fruits of the searches on the basis that the original search authorization was overbroad. That motion was rejected at trial and on appeal before the Air Force court, and is now rejected by CAAF as well.

Writing for the unanimous court, Judge Sparks avoids any bright-line rule for electronic searches except for the Fourth Amendment’s particularity requirement that prevents general searches, which are “a general exploratory rummaging in a person’s belongings.” Slip op. at 6 (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)). Instead, Judge Sparks explains that “the courts have looked to what is reasonable under the circumstances.” Slip op. at 6. And here, because the authorization was limited to evidence of communications with the minor (which could include images), it was reasonable.

Read more »

The DoD has formally published the proposed changes to the MCM necessary to implement the Military Justice Act of 2016 (previously discussed here).

The Federal Register notice is available here.

The Regulations.gov folder is available here.

The Regulations.gov folder includes a single, 636-page PDF titled Annex 1 & 2. Annex 1 is proposed revisions to the current MCM to take effect immediately upon promulgation by the President. Annex 2 is proposed revisions to take effect with the changes made my the MJA (anticipated to occur on January 1, 2019).

The Joint Service Committee is accepting public comments (including electronically at the Regulations.gov link above) and will hold a public meeting in August:

Comments on the proposed changes must be received no later than September 11, 2017. A public meeting for comments will be held on August 3, 2017, from 10 a.m. until noon, in the United States Court of Appeals for the Armed Forces building, 450 E Street, NW., Washington, DC 20442-0001. Commentators will be heard in order of arrival and check-in, and will be limited to five minutes.

I plan to both comment and attend the public meeting.

The Federal Register notice includes a request for comment on a specific proposed change to R.C.M. 1103A:

The Department of Defense also requests comments on a proposal by a Federal Advisory Committee, the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP). The JPP’s June 2017 report suggested that Rule for Courts-Martial 1103A as proposed by Annex 1 and Rule for Courts-Martial 1113 as proposed by Annex 2 be further revised to include the following: “Prior to a decision to permit examination of material described in this subparagraph, notice and an opportunity to be heard shall be given to any person whose records are about to be examined and to appellate counsel.” The report making that recommendation is available at http://jpp.whs.mil/​Public/​docs/​08-Panel_​Reports/​07_​JPP_​VictimsAppRights_​Report_​Final_​20170602.pdf. The Department invites public comment on the JPP’s proposal.

R.C.M. 1103A allows appellate authorities – including counsel for the Government divisions and the appellant – to examine sealed matters attached to a record of trial. These sealed matters could – under increasingly rare circumstances – include private information pertaining to an alleged victim (such as mental health records) that were reviewed in camera but not otherwise disclosed at trial.

Last year the Air Force Appellate Government Division asked CAAF to prevent appellate defense counsel from reviewing such material, but CAAF rebuffed the request (discussed here and here). The JSC then proposed changing the R.C.M. to prevent such review (noted here). I submitted a public comment (discussed here) opposing the change. The change persists in this new round of proposals, and the JSC does not offer any rationale for it.

Happened upon this while visiting Clarksville, Tenn. A thank you to the prosecution shop Sergeant for offering to show us the courtroom. But we didn’t take her up on it because US v. Morales was going on and Son of No Man and I were not dressed for the occasion. 

This week at SCOTUS: The Government received an extension of time to file a response to the cert. petition in Alexander. Additionally, an extension of time to file a cert. petition in Tso v. United States was granted on Jul. 6. On May 17, 2017, CAAF summarily affirmed the NMCCA’s decision in Tso in light of McClour and Bartee.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

This week at the CGCCA: I’m still unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

The Military Justice Act of 2016 (MJA) was this blog’s #1 Military Justice Story of 2016, and will revolutionize the practice of military justice come January 2019. That revolution includes changes to the military justice system’s sentencing regime. One of the most aggressive changes is found in § 5301 of the MJA, which completely rewrites Article 56 to include language designed to temper a court-martial’s exercise of sentencing discretion.

Read more »

CAAF decided the Air Force case of United States v. Claxton, __ M.J. __, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.

Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.

Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.

The charges involved two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:

Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).

Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.

Read more »

A notice (available here) scheduled for publication in the Federal Register today announces a public meeting of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) (CAAFlog page) on Friday, July 21, 2017, from 8:30 a.m. to 4:45 p.m., at One Liberty Center, 875 N. Randolph Street, Suite 1432, Arlington, Virginia.

This will be the third public meeting held by the DAC-IPAD. At this meeting, the Committee will receive a presentation on the mechanics of a sexual assault investigation from a representative of each Service’s military criminal investigation organization followed by a Committee strategic planning session.

This week at SCOTUS: The Government received an extension of time to file a response to the cert. petition in Ortiz. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

This week at the CGCCA: I’m still unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.