CAAF decided the certified Air Force case of United States v. Williams, __ M.J. __, No. 16-0053/AF (CAAFlog case page) (link to slip op.) on Tuesday, May 3, 2016. Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, CAAF dismisses the certificate for review as untimely filed.

Judge Stucky writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Senior Airman Williams of rape, contrary to his pleas of not guilty. The approved sentence included confinement for two years, reduction to E-1, and a bad-conduct discharge. On appeal, however, the Air Force CCA reversed the conviction after finding that the military judge improperly admitted evidence of a prior alleged sexual offense under Military Rule of Evidence 413. The CCA’s issued its decision on June 19, 2015.

On July 20, 2015, the Government filed a motion for reconsideration with the CCA. That motion was denied four days later. The Government then filed a second motion for reconsideration on August 3, 2015, challenging the denial of the first motion and “asking the AFCCA ‘to reconsider … its order dated 24 July 2015.'” Slip op. at 2. The CCA denied the second motion on August 10, 2015. Almost two months after that – and 75 days after the first motion for reconsideration was denied – the Judge Advocate General of the Air Force certified the case to CAAF. Williams then moved to dismiss the certification on the basis that it was untimely.

Article 67 gives CAAF jurisdiction over three kinds of cases: Capital cases, cases that a Judge Advocate General orders sent to the court for review (known as certified cases), and cases in which the court grants review for good cause shown upon petition of the accused. Article 67 also sets a 60-day jurisdictional deadline for an accused’s petition for review, but no time limit for a JAG’s certification. However, CAAF’s rules (established pursuant to Article 144) set a 60-day non-jurisdictional deadline for certification by a JAG. Both the petition deadline and the certification deadline begin on the later of the date of the CCA’s decision or its action on a petition for reconsideration.

Writing for a unanimous court Judge Stucky finds that the Air Force JAG’s certification of Williams was untimely because the Government’s second reconsideration motion was not a petition for reconsideration of the substantive decision of the CCA, but rather was a petition for reconsideration of the CCA’s denial of the Government first request for reconsideration.

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Today CAAF issued its opinion in the certified Air Force case of United States v. Williams, No. 16-0053/AF (CAAFlog case page).

While CAAF’s website is down, the opinion is available here.

Analysis to follow.

CAAF will hear oral argument in the Army case of United States v. Evans, No. 16-0019/AR (CAAFlog case page), on Tuesday, May 10, 2016, at 9:30 a.m. The case addresses CAAF’s application of two different tests to evaluate whether a violation of Article 31(b) caused prejudice to a substantial right of an accused, with the following issue that was specified by the court:

Where the Army Court of Criminal Appeals found evidence was admitted in violation of Appellant’s Article 31(b), UCMJ, rights, did the court err in applying the Kerr prejudice test as opposed to the Brisbane harmless beyond a reasonable doubt test?

A general court-martial composed of officer members convicted First Lieutenant Evans, contrary to his pleas of not guilty, of two specifications of making false official statements and one specification of larceny, in violation of Articles 107 and 121. Evans was sentenced to confinement for one month, total forfeitures, and a dismissal.

The false official statement convictions relate to statements Evans made during an investigation into his wearing of an unauthorized decoration (a combat patch). One statement was the submission of a dental x-ray purportedly taken at a clinic in Afghanistan, and the other was a memorandum in which Evans confirmed that he submitted the x-ray as part of the investigation and also asserted that he was treated by an Army dentist in Afghanistan. The memorandum, however, was obtained in violation of Article 31(b) when Evans was questioned by investigators without his attorney present. Nevertheless, the memorandum was admitted into evidence over the objection of the defense, and it was used as evidence to prove both false statement offenses.

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CAAF’s website is currently inaccessible due to an issue at Maxwell Air Force Base. The court is aware of the problem but does not know when it will be resolved.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on May 10, 2016.

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). The Army CCA will hear oral argument in one case this week:

Thursday, May 5, 2016, at 10 a.m.: United States v. Hennis, No. 20100304

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 2016.

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’s website shows no scheduled oral arguments.

In an opinion issued yesterday the Army CCA denies a Government appeal under Article 62 of a military judge’s ruling regarding defense access to classified information in the Bergdahl case.

The opinion is available here.

Washington Post reporter John Woodrow Cox – whose investigation of the court-martial prosecution of Marine Major Mark Thompson, formerly an instructor at the Naval Academy, yielded some ugly results (discussed here) – now reports that Major Thompson faces new charges:

After revelations about his case in The Washington Post, the military has now charged Thompson with one count of making a false official statement and another of conduct unbecoming an officer and a gentleman.

The full story is available here and includes this damaging admission:

Asked in January of this year why he had lied to authorities, Thompson described the immense pressure he faced after one of the women asserted that he’d raped her.

“I simply had to, when they were coming after me for 41 years,” Thompson said, “I can’t begin to say, you know, how terrifying that is.”

Update: It is very difficult to hear Judge Ryan in CAAF’s recording of the oral argument in Sterling. I was able to enhance the recording to make her easier to hear. The enhanced audio is available here

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

United States v. Witt, No. 15-0260/AF (CAAFlog case page): Oral argument audio

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page): Oral argument audio (original from CAAF)

Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin. 

CAAF decided the certified Air Force case of United States v. Chin, __ M.J. __, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.

Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.

The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with the following issue:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.

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This week at SCOTUS: The Government received an additional (4th) extension of time to respond to the cert. petition in Sullivan. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in two cases this week:

Tuesday, April 26, 2016, at 9:30 a.m.:

United States v. Witt, No. 15-0260/AF (CAAFlog case page)

Issues:
I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?
II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

Case Links:
AFCCA decision (72 M.J. 727)
Blog post: AFCCA sets aside death sentence in Witt
AFCCA decision (73 M.J. 738)
Blog post: AFCCA reinstates the death penalty for Senior Airman Witt
Blog post: #7 Military Justice Story of 2014
Blog post: CAAF to examine the AFCCA’s reconsideration
Blog post: Oral argument limited to two issues
• Appellant’s brief (specified issues)
Appellee’s (Government) brief (specified issues)
Appellant’s reply brief (specified issues)
Appellee’s (Government) brief (specified issues
Appellant’s brief (other issues)
Appellee’s (Government) brief (other issues)
Appellant’s reply brief (other issues)
Blog post: Argument preview

Wednesday, April 27, 2016, at 9:30 a.m.:

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page)

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?
II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?
II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: A military order vs. the Religious Freedom Restoration Act
Blog post: The Government’s answer and an amicus brief in Sterling
Blog post: CAAF grants (on specified issues) in Sterling
Blog post: Navy JAG certifies issues in Sterling (and the appellant files her brief)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Amicus brief (in support of Sterling): Aleph Institute, et al.
Amicus brief (in support of Sterling): Alliance Defending Freedom and Chaplain Alliance for Religious Liberty
Amicus brief (in support of Sterling): Citizens United, Citizens United Foundation, U.S. Justice Foundation, Faith and Action, Public Advocate of the U.S., Conservative Legal Defense and Education Fund, Institute on the Constitution, E. Ray Moore, and George P. Byrum
Amicus brief (in support of Sterling): Members of Congress, American Center for Law and Justice, and Committee to Protect Religious Liberty in the Military
Amicus brief (in support of Sterling): Nine Retired General Officers
Amicus brief (in support of Sterling): Rabbi Philip Lefkowitz
Amicus brief (in support of Government): Americans United for Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way Foundation 
Amicus brief (in support of neither party): States of Oklahoma, Nevada, Arizona, Arkansas, Georgia, Nebraska, South Carolina, Texas, Utah, and West Virginia
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). The Army CCA will hear oral argument in three cases this week:

Tuesday, April 26, 2016, at 10 a.m.: United State v. Bonilla, No. 20131084 Edit: rescheduled to May 12.

Wednesday, April 27, 2016, at 10 a.m.: United States v. Marsh, No. 20120572

Friday, April 29, 2016, at 10 a.m.: United States v. Manriquez, No. 20140893

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 2016.

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’s website shows no scheduled oral arguments.

CAAF will hear oral argument in the Marine Corps case of United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page), on Wednesday, April 27, 2016, at 9:30 a.m. The case presents specified and certified issues that challenge the lawfulness of an order given to Sterling – a Marine lance corporal (E-3) who posted small, purportedly-religious signs in her workspace – to remove the signs, and also whether (and if so, how) the Religious Freedom Restoration Act applies to Sterling’s conduct:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:

I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Contrary to her pleas of not guilty Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserts that they represented the Christian trinity and were posted as an expression of her religious belief. CAAF’s review focuses on the order to remove the signs.

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In a published decision in United States v. Meador, __ M.J. __, No. 20160419 (C.G. Ct. Crim. App. Apr. 19, 2016) (link to slip op.), a three-judge panel of the Coast Guard CCA grants a Government appeal and reverses the military judge’s ruling that dismissed a charge because the Article 32 Preliminary Hearing Officer (PHO) found that probable cause did not exist. Writing for the panel, Judge Judge holds that:

The statutory scheme does not make the PHO’s determination as to probable cause binding on the SJA or the convening authority (CA).

Slip op. at 2. The case involves the same military judge, and the CCA’s decision is authored by the same appellate military judge, as in the CCA’s recent decision in United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (discussed here), in which the CCA held that the Government must present some evidence to support a Staff Judge Advocate’s Article 34(a)(2) determination that s specification is warranted by the evidence.

In Meador, comparing the text of Article 32 to that of Article 34, Judge Judge finds that:

There is nothing in this statutory scheme that makes a determination of probable cause by the PHO a precondition of referral to a general court-martial, nor is there any language making the PHO’s determination binding on the SJA or the CA. By contrast, the SJA’s advice is a clear precondition of referral to a general court-martial. The statutory language consequently provides no support for the proposition that the PHO’s determination of probable cause is dispositive.

Slip op. at 3.

In an unpublished decision in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016) (link to slip op.), a three-judge panel of the Air Force CCA rejects an appellant’s claim that the military judge should have sua sponte recused herself because of her hostility toward his civilian defense counsel. Specifically, the appellant asserted that:

the military judge took a hostile tone toward his civilian defense counsel, especially when compared to her discussions with the trial counsel. Appellant bases his assertion on the military judge electing to hold his civilian defense counsel in contempt, while not taking a similar action against the trial counsel.

Slip op. at 3 (emphasis added). The civilian counsel is not identified in the CCA’s opinion and no punishment was imposed in connection with the finding.

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Yesterday CAAF granted review in a Navy case:

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, “I THINK HE’S AN IDIOT,” OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT’S STATEMENTS AS “RIDICULOUS,” VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT “SLEEPS IN A BED OF LIES.” WAS THIS PLAIN ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found error but not plain error that some of the comments were not improper and others were not plain error (the defense did not make a timely objection).

My notes indicate that this is the first prosecutorial misconduct case of the term. Government bloopers were our #2 Military Justice Story of 2015.

CAAF will hear oral argument in the capital Air Force case of United States v. Witt, No. 15-0260/AF (CAAFlog case page), on Tuesday, April 26, 2016, at 9:30 a.m. As one of only six inmates on the military’s death row, Witt’s case presents the typical smorgasbord of issues raised in a capital case. However, next week’s oral argument will address only two issues, both of which were specified by the court:

I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?

II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and also of the attempted murder of another Airman, and sentenced Witt to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial. But the court split 3-2 on the question of prejudice, narrowly finding that had Witt’s counsel not been deficient then the members might not have adjudged the death sentence. The CCA remanded for a sentence rehearing where Witt could have received another death sentence, a sentence of confinement for life without eligibility for parole, or the mandatory minimum sentence of confinement for life with eligibility for parole.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014 (discussed here). As it had in the first decision, the CCA again found that Witt’s trial defense counsel were deficient. But on the crucial question of prejudice the court split 4-2 to find that Witt was not prejudiced by his counsel’s errors, and accordingly it approved the adjudged sentence of death. This reversal of fortune was our #7 Military Justice Story of 2014.

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