CAAF will hear oral argument in the Air Force case of United States v. Wheeler, No.17-0456/AF (CAAFlog case page), today, after the oral argument in Condon. The court granted review of a single issue:

Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

The preemption doctrine prohibits application of Article 134 to conduct covered by the other punitive articles. See ¶ 60.c.(5)(a), Part IV, MCM (2016). Wheeler was convicted of attempted enticement of an individual under the age of 18, in violation of 18 U.S.C. § 2422(b), incorporated into the UCMJ by clause 3 of Article 134. The issue before CAAF is whether this offense is preempted by Article 120b, which is a rather comprehensive prohibition against child sex offenses.

Wheeler was convicted of:

a violation of Article 134 for an attempt to “knowingly persuade, induce, or entice an individual . . . believed to be a child who had not attained the age of 18 years . . . in violation of 18 USC Section 2422(b), a crime or offense not capital.”

Gov’t Div. Br. at 5. There was, however, no actual minor. It “was actually Special Agent WG and Sergeant AM.” Gov’t Div. Br. at 5.

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CAAF will hear oral argument in the Air Force case of United States v. Condon, No.17-0392/AF (CAAFlog case page), at 9:30 a.m. today. The court granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members.

The specified issue addresses the fact that:

Prior to trial, the defense moved to suppress the statements contained in Pros. Ex. 6 (PE-6), Appellant’s videotaped AFOSI interrogation, and the motion was denied. (JA 75-81, 624-685.) During this interrogation, Appellant invoked his right to remain silent and requested counsel. (JA 524.) Subsequent to his decision to remain silent and to request counsel, he continued speaking to the law enforcement agents present (JA 524.) Based on how the events progressed and the agents’ responses to his questions, Appellant chose to continue the interrogation. (JA 524.)

App. Br. at 4. The video of the interrogation was played to the members in its entirety, including the invocation of rights (over defense objection).

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This week at SCOTUS: The Supreme Court heard oral argument in Dalmazzi on January 16 (audio) (transcript). Also on the 16th, the Solicitor General filed a response to the cert. petition in Richards. On the 19th, the SG waived the right to respond to the petition in Roukis.

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 is scheduled to hear oral argument in four cases this week (all Air Force cases):

Tuesday, January 23, 2018, at 9:30 a.m.:

United States v. Condon, No.17-0392/AF (CAAFlog case page)

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

Case Links:
AFCCA decision
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (A.F. Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Wheeler, No.17-0456/AF (CAAFlog case page)

Issue: Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

Case Links:
AFCCA decision (76 M.J. 564)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (A.F. Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, January 24, 2018, at 9:30 a.m.:

United States v. Blanks, No.17-0404/AF (CAAFlog case page)

Issue: In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Case Links:
AFCCA decision
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (A.F. Gov’t App. Div.) brief
Appellant’s reply brief
• Blog post: Argument preview (in-progress)

Followed by:

United States v. Robinson, No.17-0504/AF (CAAFlog case page)

Issue:

Case Links:
AFCCA decision (76 M.J. 663)
Blog post: CCA opinion analysis
Blog post: CAAF grants review in related case
Blog post: CAAF grants review in this case
Appellant’s brief
Appellee’s (A.F. Gov’t App. Div.) brief
Appellant’s reply brief
Amicus brief (supporting Robinson): Army Defense App. Div. 
Amicus brief (supporting Robinson): EFF, ACLU, ACLU of DC
• Blog post: Argument preview (in-progress)

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 next scheduled oral argument at the Navy-Marine Corps CCA is on February 21, 2018.

On Tuesday CAAF granted review in this Army case:

No. 17-0604/AR. U.S. v. Christopher E. Christensen. CCA 20140372. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT WAS SUBJECT TO COURT-MARTIAL JURISDICTION.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant was in civilian confinement and pending involuntary administrative separation (for alcohol abuse rehabilitation failure) when military authorities decided to retain him on active duty for a possible court-martial. But the administrative separation processing continued, he received separation orders and a DD-214, and DFAS began processing his final pay. The Army CCA, however, found that there was never a final accounting of pay made to the appellant, and so his discharge was not final:

Here, the processing of appellant’s pay stopped at a stage similar to that in Hart, and we find the reasoning of the [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)] court persuasive and controlling. The initial calculations, or snapshot, of appellant’s pay were entered into the DFAS system. Further action to calculate appellant’s final pay depended upon the removal of a code by DFAS. This never occurred since LTC AT acted to halt this calculation and, later LTC JD, as the SPCMCA, effectively ratified this action in a timely manner. Accordingly, we concur with the DuBay military judge that appellant’s “‘final pay or a substantial part of that pay’ were never computed or made ready for delivery to him” and that the Army retained jurisdiction over appellant.

Slip op. at 9.

Available here.

Army JAG sites still inaccessible from the public internet (discussed here).

Available here. Audio expected on Friday.

Excerpt (from pdf page 29):

With regard to how this Court could distinguish and save for another day the question of when Congress could give it direct appellate jurisdiction over an administrative tribunal, I do think the fact that Congress has called the Court of Appeals for the Armed Forces a court of record, that it acts like a court of record, and that it dispenses judgments in criminal cases are all reasons that distinguish it from administrative adjudication.

Here’s a link to SCOTUSblog’s analysis of today’s oral argument at the Supreme Court in Dalmazzi.

Excerpt:

[Assistant to the solicitor general Brian H.] Fletcher sat down without using all of his 30 minutes of argument time, having faced relatively few questions about the merits of the service members’ challenge. Assuming that the justices get that far, that’s a good sign for the government. But Fletcher faced more, and tougher, questions about whether the court has the authority to hear the service members’ cases at all. The government and the service members agree that it does, but a University of Virginia law professor, Aditya Bamzai, argued today that it does not. Bamzai told the justices that the court can only review decisions by the U.S. Court of Appeals for the Armed Forces (CAAF), which heard the service members’ appeals from the CCAs, if those decisions are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power.

The justices struggled with the broader implications of Bamzai’s assertion throughout the oral argument. Breyer outlined the problem in a question for Vladeck, telling him that there are “many adjudicatory bodies in the executive branch”: How, he asked, do we draw a line that will allow us to hear appeals from the CAAF, but not from other entities such as the National Labor Relations Board or the Securities and Exchange Commission? There were no clear-cut answers to Breyer’s question; a decision on both the jurisdictional issue and, if necessary, the dual-officeholding ban is expected by summer.

This week at SCOTUS: The Supreme Court will hear oral argument in Dalmazzi tomorrow morning.

The Court denied the cert. petitions in Bartee and Tso (noted here). The Solicitor General filed a memorandum response to the cert. petition in Cash (available here), asking that it be held as a Dalmazzi trailer.

On January 8 the Court docketed a new cert. petition in Roukis v. Department of the Army, No 17-7321. A copy of the petition is available here.

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’s website is inaccessible, however the next scheduled oral argument is on January 23, 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 is inaccessible (it’s on the same server as CAAF’s website).

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 February 21, 2018.

With a published decision in United States v. Buford, __ M.J. __, No. 39087 (A.F. Ct. Crim. App. Dec. 19, 2017) (link to slip op.), the Air Force CCA holds:

The members sentenced Appellant to a bad-conduct discharge and reduction to E-1. The convening authority approved the adjudged sentence and ordered that “[u]nless competent authority otherwise directs, [Appellant] will be required, under Article 76a, UCMJ, 10 U.S.C. § 876a, to take leave pending the completion of appellate review.” At the time Appellant began the required period of what is referred to as appellate leave, he had 73 days of accrued leave. When presented with an option to receive a lump sum payment for the accrued leave or to “use” the leave, Appellant elected the latter, or to “[r]eceive pay and allowances during the period of accrued leave, then continue on unpaid required excess leave.” As of the date Appellant filed his appellate brief, he had not been paid for the period of accrued leave.

Appellant asserts he has been improperly denied his pay and this court has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide a remedy. Appellant specifically requests two forms of tailored relief. First, Appellant asks that we prohibit the convening authority from taking final action until Appellant is paid for the period of accrued leave. Secondly, Appellant argues that we should disapprove the approved reduction in grade to E-1 so that his accrued leave is paid at the E-4 rate, which would compensate him for the consequential damages (financial hardships) he attributes to the improper withholding of pay. We hold that Article 66(c), UCMJ, does not grant this court jurisdiction over a pay dispute absent a nexus to the approved sentence. As Appellant’s dispute with military officials does not concern the approved sentence, it is beyond our statutory authority. We find no error that materially prejudiced a substantial right of Appellant and affirm the findings and sentence.

Slip op. at 2 (marks in original) (emphasis added).

The opinion distinguishes the circumstances of this case from those of United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), in which CAAF affirmed the CCA’s power to grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment:

In Gay, the legal deficiency resulted in improper solitary confinement and “conditions of confinement that were more severe than what [appellant] should have experienced.” [75 M.J.] at 269. We note that the authority validated in Gay was rooted and limited to a legal deficiency that directly impacted a component of the sentence. It is clear that Gay may be cited for the proposition that a CCA is not limited to violations of the Eighth Amendment to the United States Constitution, Article 55, UCMJ, 10 U.S.C. § 855, or other defined rights and protections as a basis for granting relief. However, CAAF in Gay did not recognize unlimited authority under Article 66(c), UCMJ, for a CCA to grant sentencing relief, including for errors collateral to the court-martial process. We are neither persuaded that we have such unlimited authority nor convinced that we should exercise any of our limited authority to grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-martial sentence.

Slip op. at 6 (emphasis in original).

The underlying issue seems to be a recurring problem. The CCA made a similar finding of no-jurisdiction in United States v. Whiting, No. S32420 (A.F. Ct. Crim. App. Jan. 4, 2018) (link to slip op.).

CAAF issued summary dispositions in three Hills trailers yesterday, two from the Army and one from the Marine Corps. The court reverses the sex offense convictions in one case, but affirms in the other two (finding the Hills error to be harmless).

The findings of harmlessness come one day after CAAF heard oral argument in United States v. Williams, No. 17-0285/AR (CAAFlog case page), during which the bench was lively with questions about whether the error was harmless. CAAF recently found prejudice, reversing and rebuking the Army CCA in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page). These three newer dispositions provide additional detail about what the court finds acceptable (and not).

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An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

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In a scathing opinion in United States v. Christopher, No. 201600249 (N.M. Ct. Crim. A.. Dec. 28, 2017) (en banc) (link to slip op.), the NMCCA concludes that:

the appellant’s trial defense team was ineffective because they erroneously concluded that the statute of limitations was inapplicable to his case.

Slip op. at 3. Judge Jones writes for a unanimous court. The counsel are not identified.

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

United States v. Carpenter, No. 0476/AF (CAAFlog case page): Oral argument audio. (link fixed)

United States v. Mooney, No. 17-0405/AF (CAAFlog case page): Oral argument audio.

Article 6b states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). It does not, however, say precisely how the victim may be heard.

Article 42(b) states that “each witness before a court-martial shall be examined on oath.”

R.C.M. 1001A states that a victim may make a sworn or unsworn statement during the sentencing phase of the court-martial “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

In United States v. Hamilton, __ M.J. __, No. 39085 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (link to slip op.), the Air Force CCA reconciles the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concludes:

unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence. See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is not offering evidence). Both R.C.M. 1001(c)(2)(C) and R.C.M. 1001A(e) allow facts in an unsworn statement to be contradicted or rebutted. This does not change the character of the right to speak.

Slip op. at 5 (emphasis added). Furthermore, because a victim’s unsworn statement is not evidence, the Military Rules of Evidence (including the balancing test in Mil. R. Evid. 403) “do not apply to victim unsworn statements.” Slip op. at 9.

The majority specifically “does not address the application of the Mil. R. Evid. to sworn victim impact statements.” Slip op. at 5 n.3.

The conclusion that an unsworn statement from a victim is not evidence is consistent with precedent explaining that an accused’s unsworn statement “is not evidence.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)) (last discussed here). But it is not unanimous. Three judges dissent, with Senior Judge Harding writing:

As R.C.M. 1001A victim statements, sworn or unsworn, are presented to the court-martial for use and consideration on the determination of sentence, in addition to empowering a victim to speak, I would treat them as sentencing “evidence” by any other name and follow the Military Rules of Evidence, absent an exception otherwise provided.

Slip op. at 15 (Harding, S.J. dissenting).

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