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

United States v. Ramos,  No. 17-0143/CG (CAAFlog case page): Oral argument audio

United States v. Brantley, No.17-0055/AR (CAAFlog case page): Oral argument audio

United States v. Forrester, No. 17-0049/MC (CAAFlog case page): Oral argument audio

While not shocking in light of prior studies of the MilJus system, if the Judicial Proceedings Panel‘s April 2017 report recommendations are followed, the services will need to make an investment of money and training in the MilJus system. The report is essentially an update/supplement to prior recommendations in the JPP Subcommittee Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases  (Dec. 9, 2016).  The JPP’s April 2017 report is based in part on the JPP Subcommittee’s site visits to service prosecution and defense offices.  The Executive Summary states:

The JPP deliberated on the Subcommittee’s report and had the opportunity to question the JPP  Subcommittee members who attended the installation site visits. As a result of this deliberation, the JPP’s report summarizes and adopts the information presented by the Subcommittee, provides additional information from Service responses to a JPP request for information, and adopts the Subcommittee’s recommendations, with modifications.

The JPP makes four recommendations in the area of defense counsel resources and experience, several of which had—in some form—been recommended by its predecessor panel, the Response Systems to Adult Sexual Assault Crimes Panel (RSP) in its June 2014 report to Congress. The JPP recommends that the Services provide independent defense investigators, ensure sufficient staffing and resourcing of Service defense offices, place expert witness approval and funding authority in the Service defense organizations, and ensure that lead defense counsel in sexual assault cases have sufficient litigation experience, setting a minimum tour length for defense counsel of two years.

The report is available here. [Updated link to the JPP’s Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases and updated post to reflect some of the JPP’s statements]

CAAF will hear oral argument in the Marine Corps case of United States v. Forrester, No. 17-0049/MC (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Brantley. The case is the most direct review of the concept of unreasonable multiplication of charges since CAAF’s decision in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page) (clarifying the difference between multiplicity and unreasonable multiplication of charges, and recognizing that charges may be unreasonably multiplied for sentencing alone).

Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.

The eleven total specifications were charged as just seven specifications, but the military judge split four of those specifications into two each (apparently to avoid specifications that alleged conduct both before and after the effective date of Executive Order 13593). Then, “after findings, the judge merged two of the specifications back into the original two, resulting in convictions for a total of four specifications.” App. Br. at 2. Those four convictions all involved possession of the same 23 images of child pornography on four separate devices: three computer drives and an email account. Forrester asserts that his four convictions for possession of the same contraband images on four different mediums constitutes an unreasonable multiplication of charges.

The NMCCA rejected Forrester’s unreasonable multiplication claim, concluding that “the government was able to prove that the appellant took separate steps on separate dates to copy the initial 23 images to the other media devices—and thus completed the necessary actus reus each time he re-copied the images.” United States v. Forrester, No. 201500295, slip op. at 4 (N.M. Ct. Crim. App. Aug. 30, 2016) (per curiam). CAAF then granted review of a single issue:

Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

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CAAF will hear oral argument in the Army case of United States v. Brantley, No.17-0055/AR (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Ramos. A single issue questions the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment:

Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.

Private First Class (E-3) Brantley was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) by touching the alleged victim’s breasts while she was otherwise unaware. The panel sentenced Brantley to confinement for 90-days, reduction to E-1, and a bad-conduct discharge. The convening authority approved the findings and sentence and the Army CCA summarily affirmed.

Brantley’s conviction was of a statute that prohibits sexual touching of “another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring.” Article 120(b)(2). In United States v. Sager, __ M.J. __ (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), CAAF concluded that the statute’s enumeration of “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted, and the court reversed a decision by the NMCCA that had held the language creates only a single theory of criminal liability based upon unawareness (the three enumerations being ways that a person may be unaware).

The prosecution of Brantley doesn’t seem to involve the kind of error committed by the NMCCA in Sager. Rather, Brantley’s brief focuses on the trial counsel’s argument to the members (apparently without objection or correction by the military judge) that Brantley was guilty because the alleged victim was merely impaired (by a combination of alcohol and prescription drugs); a condition that is fundamentally different from being unaware and alone likely too vague to form a basis for criminal liability.

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CAAF will hear oral argument in the Coast Guard case of United States v. Ramos, No. 17-0143/CG (CAAFlog case page), on Tuesday, April 25, 2017, at 9:30 a.m. The court will consider a single issue that questions whether military investigators were required to give an Article 31(b) warning before questioning the appellant about threats to his wife’s recreational marijuana business activities:

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 case arose from an agreement between Ramos’ wife (a civilian) and a third-party (also a civilian) “to start a business for manufacturing marijuana under Washington State’s recreational marijuana law.” App. Br. at 2. Ramos attempted (or maybe not) to distance himself from the venture. However, while Washington State law permits (and regulates) the cultivation, sale, possession (and use) of marijuana, it is still illegal nationwide. See, for example, 21 U.S.C. § 844. It is also prohibited by the Uniform Code of Military Justice. 10 U.S.C. § 912a. Accordingly, the Ramos marijuana business (like all such businesses) was unlawful.

The business failed. This caused a dispute between Ramos’ wife and her business partner. The partner threatened Ramos’ wife and also “contacted the Coast Guard Investigative Service [(CGIS)] to report that [Ramos] was involved in the marijuana business.” App. Br. at 3-4. Ramos separately informed his command about his wife’s activities and the threats, leading to Ramos being interviewed by the CGIS. Ramos made statements during that interview that were admitted against him during his court-martial. However, 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.

Read more »

This week at SCOTUS: The Solicitor General received additional extensions of time to file responses to the cert. petitions in Dalmazzi and in Cox, both to May 15, 2017. Additionally, a petition for rehearing was filed in Howell (cert. denied Mar. 27). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in three cases this week, all on Tuesday, April 25, 2017:

At 9:30 a.m.:

United States v. Ramos,  No. 17-0143/CG (CAAFlog case page)

Issue: 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.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard App. Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Brantley, No.17-0055/AR (CAAFlog case page)

Issue: Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.

Case Links:
• ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Forrester, No. 17-0049/MC (CAAFlog case page)

Issue: Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 2, 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 next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2017.

CAAF decided the Army case of United States v. Ahern, __ M.J. __, No. 17-0032/AR (CAAFlog case page) (link to slip op.), on Thursday, April 20, 2017. The court finds that when the appellant’s civilian defense counsel (who is not named in the opinion) affirmatively stated that the defense had no objection to admission of appellant’s statements, that extinguished appellant’s right to complain on appeal about the admission of the statements.

Judge Ryan writes for a unanimous court.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal. The Army CCA affirmed the findings and the sentence.

Ahern’s “convictions are all related to his sexual abuse of his stepdaughter.” Slip op. at 2. Pretext phone calls were conducted during the investigation of the offense, during which Ahern did not directly deny the allegations. He also did not deny the allegations in pretext text messages. The defense moved to admit the text messages while the prosecution moved to admit the phone calls, and the defense had no objection to admission of the phone calls:

[MJ]: Okay. Very well.
And if I believe according to the Court’s notes, those would be the government Motion in Limine to Admit the Pretext Telephone Calls, which has been marked as Appellate Exhibit VII. I received no defense response to that motion. Defense counsel, you are not contesting that motion.
Is that correct?

[CDC]: Correct, Your Honor.

(Brackets in original.) Later, the Government admitted the phone call into evidence, and the following exchange took place:

[ATC]: Your Honor, the government moves to admit Prosecution Exhibit 3 for identification into evidence.

MJ: Objections, defense?

[CDC]: No objections.

Slip op. at 3-4 (marks in original). Then, “during closing argument, trial counsel argued that [Ahern’s] failure to deny the accusations made in the text messages and phone calls was evidence of his guilt.” Slip op. at 4. The defense did not object, however on appeal Ahern asserted that the closing argument was prohibited by Mil. R. Evid. 304(a)(2). That Rule states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

The Army CCA made a first-impression interpretation of the Rule in a decision discussed here, and concluded that the Rule is triggered when an accused is aware of the investigation (determined by an objective test). CAAF then granted review to decide:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

But in today’s opinion Judge Ryan doesn’t answer the granted issue because “Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.” Slip op. at 9.

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We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

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Users may have noticed a site outage this morning. The cause was a faulty piece of hardware (a switch). It’s been repaired.

In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.

The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.

There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.

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While the court decided the case on February 9, 2017 (two days after hearing oral argument), CAAF issued its opinion in the Air Force case of United States v. Ortiz, __ M.J. __, No. 16-0671/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Avoiding answering more than necessary to decide the case, CAAF finds no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. Ortiz is a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which raised similar issues, was resolved on mootness grounds, and is now the subject of a petition for certiorari (discussed here).

Judge Stucky writes for a unanimous court.

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CAAF decided the certified Air Force case of United States v. Fetrow, __ M.J. __, No. 16-0500/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Reviewing the Air Force CCA’s determination of when evidence of uncharged alleged child molestation is admissible under Mil. R. Evid. 414, CAAF agrees with the CCA’s determination that such evidence must (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. CAAF affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

Judge Sparks writes for a unanimous court.

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This week at SCOTUS: The Solicitor General filed a brief in opposition to the cert. petition in Sterling. The brief is available here. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Anderson, No. 2016-17, on Tuesday, April 18, 2017, at 2 p.m. According to the CCA’s website, “this argument will be closed and not open for public viewing.” The case number indicates that this is either an interlocutory appeal or a petition for extraordinary relief (possibly a petition by an alleged victim under Article 6b).

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2017.

Audio of the April 5 and 6 oral arguments at the Navy-Marine Corps CCA is available at the following links:

United States v. Hale, No. 201600015: Oral argument audio

United States v. Harris, No. 201600207: Oral argument audio

Earlier this week the Department of Justice issued a notice in the Federal Register asking the public to submit proposals to:

(1) Improve the underlying science and validity of forensic evidence; (2) improve the operational management systems of forensic science service providers; and (3) improve the understanding of forensic science by legal practitioners.

Notice of Public Comment Period on Advancing Forensic Science, 82 Fed. Reg. § 17879 (April 13, 2017).

The notice explains that public comment is necessary now because the 2-year charter for National Commission on Forensic Science (NCFS), which is a Federal Advisory Committee like the military justice system’s Judicial Proceedings Panel (CAAFlog page), is about to expire.  The Department specified: “Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc.” Id. at § 17880.

Media response to the DOJ’s notice has been inaccurate and, at times, shrill. The Washington Post, reading an advance copy of the Notice, interpreted that the Attorney General had already decided not to renew the NCFS. Meanwhile, in a feature article, Rolling Stone lamented, “Jeff Sessions is Keeping Junk Science in America’s Courts” and “Trump’s attorney general is a threat to the rule of law he’s tasked with upholding[.]”

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