NIMJ announced today that four new advisors joined the organization:

The organization is also planning to re-launch its website, maintenance of which ran into funding/staffing issues.

 

Report below from Monday, September 15, 2014 at the Al Hadi Military Commission hearing. NIMJ’s volunteer observer for this hearing was Leslie Esbrook, a student at Yale Law School.  BZ to Leslie for taking time to go to Gitmo.

Hearings on AE013 Motion to Protect Against Disclosure of National Security Information, United States of America v. Abd al Hadi al-Iraqi

Monday, September 15, 2014

Hearings in the case of U.S. v. Abd al-Hadi al-Iraqi began at 1330 hours. Judge Waits introduced the new defense counsel, Lt Col Thomas Jasper Jr U.S. Marine Corps, who will replace Lt Col Callan. He read Lt Col Jasper’s legal qualifications into the record, and informed the defendant of his counsel rights given the change in counsel. Lt Col Callan will be excused as of October 1, 2014, but he will not be released from the case until September 30, 2014 because the new scheduling order will instruct parties to provide a sealed ex parte list of motions intended to be filed in the case, and Judge Waits believes that Lt Col Callan could be instrumental in identifying these legal motions. This means that the defendant will have two military defense counsel until the end of September, although he is only entitled to one. Judge Waits also read into the record the fact that all interpreters in the military commission had been previously sworn in, and notified the parties that a new scheduling order would be issued after the close of hearings today.

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Here is NYT coverage of the signing of the US-Afghan Bilateral Security Agreement (BSA). The agreement ensures immunity from Afghan criminal law for US servicemembers in Afghanistan.  The same cannot be said for contractors working for DoD.  The BSA, or at least the draft that was released by the Afghan government in 2013 (here) does not provide immunity for DoD contractors.  DoS and USAID contractors are covered by separate agreements.  The State INL agreement (here) grants contractor employees Administrative and Technical Staff immunity under the Vienna Conventions and a separate Sep. 19, 2005 USAID Strategic Objective Grant Agreement with Afghanistan governs USAID contractors.

CAAF will hear oral argument in the Army case of United States v. Piren, No. 14-0453/AR (CAAFlog case page), on Wednesday, October 8, 2014. The case presents two issues related to statements Appellant made to an active duty field grade sexual assault nurse examiner who did not advise Appellant of his Article 31(b) right to remain silent:

I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.

II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.

The incident leading to Appellant’s conviction (and the offense of which he was acquitted) was a sexual encounter with a female soldier, Specialist (SPC) KW. After a night of drinking, SPC KW and Appellant ended up in a hotel room together:

According to KW, she fell asleep and woke up sometime later with the appellant kissing her stomach about “two inches above her vagina.” She screamed “you’re not Zac,” kicked him, and yelled at him to get out. After he left, she went down to the lobby of the hotel, told the receptionist that she had been raped, and waited for the German police and her friends to arrive.

App. Br. at 3-4 (citations to record omitted). “Zac” was SPC KW’s boyfriend. But Appellant testified at trial and provided a different version of events:

According to his testimony, at some point during the night he woke up to go to the bathroom. When he was in the bathroom he removed his jeans, urinated, and washed his hands. As he left the bathroom he heard a noise, looked over to the bed, and saw KW holding out her hand to him. When he took her hand she pulled him to her and started kissing him. As he returned her kiss she responded positively and started touching his body with her hands and kissing his ear and neck. No one spoke or made any loud noises. He then slid his hand under her bra and caressed the small of her back as she moaned with pleasure. She then slipped her hand into his boxers and started to rub his penis vigorously for about five minutes. He rolled her on her back and started kissing her from her bra line, down her stomach, to her bikini line. She helped him remove her underwear and he kissed her inner thighs and right above her vagina. He kissed her for a few seconds until she screamed, kicked him off, and yelled “you’re not Zac.” At that point he realized that she may have thought he was her boyfriend, so he apologized and offered to explain the situation to her boyfriend.

App. Br. at 4-5 (citations to record omitted). After KW made the rape allegation, Appellant made statements to a Master Sergeant and to the German police:

Appellant testified that after he left the hotel he went to the train station where he encountered Master Sergeant (MSG) Justin Bartels. Referencing MSG Bartels’ prior testimony, appellant admitted that he made a statement to MSG Bartels that he was forced out of a girl’s room when she realized that appellant was not her boyfriend after they were already kissing each other. While being questioned by German Police, appellant made a similar statement to them stating “I was in the room with a girl, we fooled around a little bit and then she kicked me out. After making these remarks, appellant explained that both MSG Bartels and the German Police cut off appellant’s explanation and told him to remain silent.

Gov’t Br. at 5-6. Appellant also made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh, who did not advise him of his right to remain silent, and he consented to a forensic sexual assault examination that included taking samples for DNA analysis.

The Government did not oppose a Defense motion to suppress the statements Appellant made to LTC Alumbaugh, but it did oppose a Defense motion to suppress the results of the DNA analysis. The statements were suppressed while the DNA results were admitted. However, despite this suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).

Appellant then testified in his own defense. The Defense deliberately “limited the scope of [Appellant's] testimony to avoid opening the door to the government’s use of the unwarned statements to LTC Alumbaugh” as impeachment. App. Br. at 9. But on cross-examination Government counsel questioned Appellant about the statements he made to LTC Alumbaugh, asking Appellant (over Defense objection) whether he “told LTC Alumbaugh that: 1) SPC K.W. kissed him, 2) SPC K.W. kissed his ear, 3) SPC K.W. grabbed [his] penis, and 4) SPC K. W. masturbated [him] for five minutes.” Gov’t Br. at 14 (marks omitted). Appellant testified that he did tell LTC Alumbaugh all of these things. Id. Government counsel then re-called LTC Alumbaugh and she testified that Appellant did not tell her any of these things. Gov’t Br. at 16.

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CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No. 14-5008/AF (CAAFlog case page), on Tuesday, October 7, 2014. The Air Force CCA reversed Appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry, for which he was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. The court took this action after finding that a DNA expert who testified for the Government improperly repeated testimonial hearsay. The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

The facts of the case are that:

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

United States v. Katso, __ M.J. __, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and Appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between Appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on Confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated Appellee’s right to confrontation. Id., slip op. at 6; Id., slip op. at 18 (Orr, S.J. concurring in part and dissenting in part). The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

In my analysis of the CCA’s opinion I thought that the following passage was particularly significant:

This case is unlike the typical urinalysis trial where a drug testing report is admitted into evidence tying the accused to the tested sample through chain of custody documents. Here, the prosecution did not admit Mr. Fisher’s report. As a result, the only evidence the members received linking the male DNA profile found in the victim’s swabs directly to the appellant – the penultimate issue in the case – came from Mr. Davenport’s testimony. We find as a matter of fact the record of trial does not definitively establish that Mr. Davenport had first-hand knowledge as to whom the known DNA sample or its corresponding profile belonged. He was able to identify the appellant by name only by repeating the testimonial statement contained in Mr. Fisher’s report that directly linked the appellant to the generated DNA profile. Without this connection, Mr. Davenport could testify that in his expert opinion the two DNA profiles Mr. Fisher created by purifying, quantifying, and copying the DNA found in the swabs he analyzed matched one another in certain respects, but consistent with the Confrontation Clause, Mr. Davenport could not identify the appellant by name.

Slip op. at 11-13 (emphasis added). I also noted that it’s not clear from the facts that there is any way the Government could have avoided this error and still used the DNA match at trial without the in-court testimony of Mr. Fisher. See United States v. Porter, 72 M.J. 335, __, slip op. at 5 (C.A.A.F. 2013) (CAAFlog case page) (per curiam) (affirming the NMCCA’s decision that reversed the convictions on confrontation grounds because “at no time during his testimony, however, did [the expert] specifically interpret or rely on the machine-generated data contained in the [drug testing report] to independently conclude that Appellee’s sample tested positive for [marijuana] and [cocaine].”).

The Government’s brief doesn’t appear to add facts that would change this analysis, nor does the Government (or Appellee) directly address this finding by the CCA. Instead, the Government argues that the CCA’s predicate legal analysis was wrong and that “the underlying scientific data generated during the forensic analysis was not hearsay and any statements relied upon by the government’s DNA expert from the original analysis were not offered to prove the truth of the matter asserted.” Gov’t Br. at 4. It follows this argument with an assertion that even if the statements and data were hearsay, they were not testimonial.

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CAAF will hear oral argument in the Air Force case of United States v. McFadden, No. 12-0501/AF (CAAFlog case page), on Tuesday, October 7, 2014, at 9:30 a.m. The case presents two issues related to a member’s questions to Appellant when Appellant testified in her own defense:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. App. Br. at 1. She pleaded guilty to one specification of unauthorized absence in violation of Article 86. Id. She pleaded not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. Id. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). Id.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant gave a pretrial statement to law enforcement in which she refused to answer questions about where she planned to go after absenting herself and whether she planned to turn herself in to military authorities. These questions were redacted from a written version of her pretrial statement that was admitted into evidence. Appellant then took the stand to testify in her own defense during the findings phase of her trial, and she asserted that she never formed the intent to remain away permanently. The military judge questioned Appellant and asked her if she ever told the investigators that she intended to return, to which Appellant responded, “I don’t believe they ever asked.” Gov’t Br. at 7. After this exchange, on re-cross-examination, the trial counsel asked whether a specific person asked Appellant if she intended to return. The Defense objected to this question as “beyond the scope,” but the military judge permitted the question and Appellant answered that she “used [her] right to remain silent at the time.” Gov’t Br. at 8.

Then the members asked Appellant questions (seven members asked questions, though the total number of members is unclear from the briefs). Gov’t Br. at 17 n.8. One of these questions was:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, and Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that my intent was to never come back.

Gov’t Br. at 9 (emphasis added). The Defense did not object or challenge this member. But the Defense did move for a mistrial “based on the military judge’s, trial counsel’s, and [the member]’s questions to Appellant.” App. Br. at 6.

The motion for a mistrial was denied. Instead, the military judge instructed the panel that Appellant’s invocation of her right to remain silent was not lying by omission. The AFCCA considered the denial of the mistrial motion and affirmed, but CAAF remanded the case to the CCA with an order to consider the case in light of CAAF’s opinion in United States v. Nash, 71 M.J. 83 (C.A.A.F. Apr. 13, 2012) (CAAFlog case page). Nash was a Marine Corps case where a member was challenged after he asked a question that indicated bias. He wasn’t removed and the appellant was convicted, but the NMCCA found implied bias and set aside the findings. The Navy JAG certified Nash to CAAF challenging the CCA’s finding of implied bias, but CAAF found actual bias and affirmed the CCA’s decision setting aside the findings.

After CAAF decided Nash and remanded this case, the CCA considered the bias issue and affirmed, distinguishing the facts of this case from the facts of Nash. CAAF then granted review.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking seven cases (six of which will be considered at Monday’s conference):

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA’s website should no scheduled oral arguments.

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 1, 2014, at 10 a.m.:

United States v. Hoffmann

Case Summary: A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and enticement, in violation of Articles 80, 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, confinement for 7 years, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: A search must be supported by probable cause. Here, to support a search authorization for child pornography, the supporting affidavit only asserted (1) allegations of a different crime, attempted child enticement, and (2) an NCIS agent’s opinion there is intuitive relationship between the two offenses. Did the military judge abuse his discretion by failing to suppress the evidence for lack of probable cause?

 

On Tuesday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Tienter, No. 201400205 (N-M. Ct. Crim. App. Sep. 23, 2014) (link to unpub. op.), rejecting a Government interlocutory appeal of a military judge’s ruling that suppressed text messages discovered on Appellee’s mobile phone. Senior Judge Ward wrote for the panel.

Appellee is a junior enlisted Marine charged with violations of Article 120 for an alleged sexual encounter in 2011 with someone who was substantially incapacitated due to alcohol intoxication. The charges were referred to trial by general court-martial in September 2013. The next month, Appellee underwent surgery and was prescribed painkillers. A fellow Marine sent Appellee text messages asking if Appellee would share those painkillers, and Appellee reported this request to his superiors. Appellee also provided “a transcript of some of these text messages to members of his command, who in turn referred the matter to law enforcement.” Slip op. at 2.

Law enforcement sought and obtained a search authorization for Appellee’s mobile phone. Specifically,

Special Agent (SA) Isaac Perez of the Criminal Investigation Division (CID) sought authorization from the Commanding Officer, MCAS Miramar, to search the appellee’s cell phone and seize electronic messages pertaining to the use and/or possession of prescription medication. In his supporting affidavit, SA Perez stated that after seizing the data from the appellee’s cell phone, CID agents would search the data using “search protocols directed exclusively to the identification and extraction of data within the scope of this warrant.” SA Perez further stated that this analysis would be completed within 90 days.

Slip op. at 2-3. Its unclear what “search protocols” means, but “after seizing the appellee’s cell phone, SA Perez attached it to a Cellebrite Universal Forensic Extraction Device (UFED), which in turn made a complete digital copy of all data in the cell phone.” Slip op. at 3. SA Perez then “created a single Portable Document Format (PDF) file containing all text messages retrievable on the cell phone.” Id. (the extraction report is 2,117 pages of material from the phone. Slip op. at 7 n.29.). SA Perez conducted a keyword search and identified text messages related to the prescription drug issue. He also observed “one text wherein the appellee admitted to adultery.” Slip op. at 7. He then drafted an investigative report documenting these efforts.

But then a trial counsel started looking through the extraction report:

Several months later, the senior trial counsel at MCAS Miramar notified SA Perez that she had located a text message in the extraction file pertaining to the sexual assault offenses then pending trial. She asked SA Perez to go back and search the same extraction file for any additional text messages that may relate to the appellee’s pending sexual assault charges.

SA Perez, with the assistance of SA Stemen of the Naval Criminal Investigative Service (NCIS) and using search terms specific to the sexual assault allegations, discovered several additional text messages which formed the basis of the defense motion to suppress. Even though more than 90 days elapsed since the search authorization had been granted, SA Perez did not seek an additional search authorization.

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A week ago, in this post, I discussed a strongly-worded proposal for greater transparency in the military justice system authored by retired Marine Corps Lieutenant Colonel Robert Bracknell. Jurist.org just published part 2 of that proposal, and it’s available at this link.

In part 2, Lieutenant Colonel Bracknell “critiques exempting military attorney misconduct and judicial misconduct records; including reports of investigations, findings and sanctions, from being released to the public and advocates for legislative changes that promote regulatory systems similar to those employed by the state bars.”

In a published opinion in United States v. Escobar, __ M.J. __, No. 38343 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to slip op.), the Air Force Court of Criminal Appeals holds that the provisions of Article 12 (prohibiting confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces) and the provisions of Article 13 (prohibiting punishment before trial and conditions of arrest or pretrial confinement that are more rigorous than necessary) do not apply to situations where a foreign sovereign confines an American service member for violations of that other sovereign’s laws.

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The September 10, 2014, version of the Military Judges’ Benchbook is available on the Army Trial Judiciary’s website here (you may have to scroll down significantly to see the page content). You can also use this direct link to download the 5 MB PDF from the Army site.

Thanks to reader T for the tip.

A number of readers have written to me with thoughtful comments about the Ninth Circuit’s recent decision in United States v. Dreyer (link to slip op.) in which Judge Berzon, writing for a divided three-judge panel of that court, held that an NCIS agent’s violation of Posse Comitatis Act-like restrictions on direct assistance to civilian law enforcement activities requires application of the exclusionary rule as a deterrent:

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason.

Slip op. at 21-22. The opinion also notes that a deterrent is needed because of “the government’s litigation positions” that include “arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.” Slip op. at  22.

I haven’t seen this as much of a military justice issue, but this analysis by Professor Orin Kerr at The Volokh Conspiracy puts the opinion in a new light. Professor Kerr sees the decision in Dreyer as “a vestige of the mid-20th century free-form view of the exclusionary rule” that “if the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.”

His take reminds me of opinions in three recent CAAF decisions in Air Force cases involving application of the exclusionary rule: Chief Judge Baker’s dissenting opinion in United States v. Cote, 72 M.J. 41 (C.A.A.F. Mar. 8, 2013) (CAAFlog case page), Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry, 72 M.J. 100 (C.A.A.F., Apr. 15, 2013) (CAAFlog case page), and Chief Judge Baker’s opinion of the court in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).

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A few weeks ago, in this post, I wrote about the Army case of Private Hernandez in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the accused of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125. At issue is CAAF’s divided opinion in United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), where the court found that the affirmative defense of mistake of fact as to age does not apply in a prosecution for non-forcible sodomy in violation of Article 125. Private Hernandez asserted that affirmative defense and the military judge found that it existed, but did not acquit Private Hernandez outright because of Wilson.

So, the Government sought extraordinary relief from the Army CCA in the form of a write forcing the military judge to make a finding. A three-judge panel rejected the Government effort, but then the court en banc granted the Government a writ of prohibition. Last week Private Hernandez appealed that decision to CAAF:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.  Notice is hereby given that a writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b).

Additionally, on Thursday of last week CAAF granted review of an issue in the certified Air Force case of United States v. Buford. This case is an interlocutory appeal of a military judge’s ruling suppressing the fruits of searches of electronic devices owned by the accused, who is charged with indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134. The military judge suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts (a Facebook page and an email account) accessed through one of those electronic devices. The CCA affirmed suppression of only the third-party sources, reversing the suppression of evidence discovered on the laptop and thumb drive. I discussed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I discussed the certification in this post. While the certified issue questions the military judge’s ruling, CAAF’s grant focuses on the decision of the Air Force CCA that partially reversed the judge’s ruling:

No. 14-6010/AF.  United States, Appellant and Cross-Appellee v. Aaron M. BUFORD, Appellee and Cross-Appellant.  CCA 2013-26.  On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is, ordered that said petition for grant of review is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING A.B. CONSENTED TO LAW ENFORCEMENT’S SEARCH OF THE CENTON THUMB DRIVE AND THE DELL LAPTOP.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedures, no further pleadings will be filed.

Last Thursday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Nichols, No. 201300321 (N-M. Ct. Crim. App. Sep. 18, 2014) (link to unpub. op.), reversing a conviction for possession of child pornography after finding that the evidence is legally insufficient to prove that the appellant possessed the three images of child pornography on the date charged.

The opinion – authored by Judge Jamison – is lengthy and includes a lot of facts, but the following sentences provide a good preview:

There is no question that the appellant possessed child pornography; the question is whether the appellant “knowingly possessed” child pornography on the charged date. Having concluded that the Government presented a circumstantially strong case that at some point in time while the appellant owned his laptop, he had received, downloaded, viewed, and knowingly possessed child pornography, we turn next to the Government charging decision. Although the Government’s case as to knowing possession may have been circumstantially strong, the decision to charge “on or about 16 May 2011” became the Government’s evidentiary Achilles heel.

Slip op. at 15 (emphasis in original). Citing CAAF’s decision in United States v. Navrestad, 66 M.J. 262, 267 (C.A.A.F. 2008), the CCA focuses on the fact that the three images at issue were in unallocated space on the appellant’s computer (meaning that they were deleted files), and explains that:

In this case, the Government presented no evidence that the appellant had the required forensic tools to retrieve digital files from the unallocated space of his computer. In fact, Ms. SH testified that once a digital file is in unallocated space, a user does not have the ability to access that digital file. Record at 1449. Because the appellant was unable to access any of the video files in unallocated space, he lacked the ability to exercise “dominion or control” over these files.

Slip op. at 17. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of knowingly possessing child pornography in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and bad-conduct discharge. The CCA’s finding affects only one of the specifications (the images at issue in the other specification were not in unallocated space).

The affected specification charged the appellant with possessing the images on or about 16 May 2011, but “following extensive deliberation, the members convicted the appellant of knowing possession of the three video files except for the words ’16 May 2011′ and substituting the words ‘3 March 2011.'” Slip op. at 12. The military judge instructed the members that they could change the charged date by up to 150 days when making their findings. Id. n.7. Notably, the judge did not permit a change of approximately two years, slip op. at 18, to a date when the file sharing program LimeWire was used with search terms that were “highly indicative of child pornography,” slip op. at 14.

Judge Jamison’s opinion openly speculates about how the members reached the March 3, 2011, date in their findings:

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This week at SCOTUS: As Phil noted yesterday, the National Institute of Military Justice filed an amicus brief in McMurrin v. United States. A copy of the brief is available here. The Court scheduled McMurrin for conference on October 10.

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

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA’s website should no scheduled oral arguments.

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

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

This week at the NMCCA: The next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.