With a published decision in United States v. Kokuev, __ M.J. __, No. 201700216 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.), a three-judge panel of the NMCCA denies an interlocutory prosecution appeal of a military judge’s rulings denying a request to sever the attorney-client relationship between the accused and his detailed military defense counsel, and denying a prosecution request to recall a witness.

The CCA finds that it lacks jurisdiction to review the request to sever the attorney-client relationship, and that the military judge did nor err in denying the prosecution request to recall a witness.

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Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until a date established by President Trump (but no later than January 1, 2019). The anticipated effective date of the changes is January 1, 2019.

The Act also requires promulgation of implementing regulations within one year of the date of enactment; so by December 23, 2017. In advance of that deadline the Joint Service Committee published a large number of proposed changes to the Manual for Courts-Martial (noted here), held a public hearing (noted here), and invited public comment.

I attended the hearing and made comments. I also submitted written comments. You can download my written submission from the regulations.gov site here.

My written comments addressed six of the proposed changes, and recommended five additional changes. They were:

Public comment on proposed changes to the Manual for Courts-Martial:

a. Do not eliminate appellate counsel’s right to review the complete record of trial.

b. Do not radically alter the existing plea agreement system.

c. The sentence limitation portion of a plea agreement is not binding upon members.

d. Adopt a modified version of Proposal #2 for impaneling members and alternate members.

e. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134.

f. The proposed change to Mil. R. Evid. 412 is long overdue.

Suggested additional changes to the Manual for Courts-Martial:

a. Clarify that Government counsel ordinarily represents either the prosecution or the appellate government division, and not the Government at large.

b. Increase procedural protections for a person accused of contempt.

c. Limit the use of personal identifiers in court-martial documents.

d. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege.

e. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

Here’s some detail on my comments about the proposed changes.

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CAAF decided the Army case of United States v. Guardado, __ M.J. __, No. 17-0183/AR (CAAFlog case page) (link to slip op.), on Tuesday, December 12, 2017. Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues but requested briefing on only the first:

I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.

II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.

In United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the CCA dissected CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), and found the improper use of charged sexual offenses as evidence of propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors. But those five factors are not explicitly part of CAAF’s decision. Rather, Chief Judge Stucky explains that:

There are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by “tipp[ing] the balance in the members’ ultimate determination.” Hills, 75 M.J. at 358.

This is not such a case.

Slip op. at 7.

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CAAF decided the certified Army case of United States v. Jacobsen, __M.J. __, No. 17-0408/AR (CAAFlog case page) (link to slip op.), on Monday, December 11, 2017. Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.

Judge Ryan writes for the court, joined by Chief Judge Stucky, Judge Ohlson, and Judge Sparks. Senior Judge Cox dissents.

The case is an interlocutory appeal in an ongoing general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. The prosecution wants to introduce a prior statement of the alleged victim to rehabilitate her credibility, but the military judge prohibited it from doing so. The prosecution then appealed that ruling.

Article 62 authorizes interlocutory appeals under limited circumstances. One of them is when a military judge issues “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). The prosecution filed such an appeal, and the trial counsel certified “that the evidence excluded is substantial proof of a fact material in the proceeding.” Article 62(a)(2).

But the Army CCA found that it lacked jurisdiction to consider the appeal because, despite the trial counsel’s certification, the CCA concluded that the military judge did not exclude evidence that is substantial proof of a fact material in the proceeding. The Judge Advocate General of the Army then certified a single issue to CAAF:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

Yesterday’s opinion answers this question with a no. A majority of CAAF adopts the reasoning of the Army CCA that because interlocutory appeals are allowed only when the case “actually meet[s] specified criteria,” slip op. at 4 (quoting CCA opinion), “the ACCA had to satisfy itself that it had appellate jurisdiction before proceeding to review the merits of the appeal,” slip op. at 5. As the lone dissenting voice, however, Senior Judge Cox “see[s] no reason in military practice for an application of Article 62, UCMJ, that second guesses the trial counsel’s certification as to the impact that excluding evidence has upon its ability to successfully try its case.” Diss. op. at 3.

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In United State v. Ferrando, __ M.J. __, No. 39039 (A.F. Ct. Crim. App. Oct. 16, 2017) (link to slip op.), a three-judge panel of the Air Force CCA rejects a challenge to court-martial jurisdiction over a reservist.

Master Sergeant (E-7) Ferrando pleaded guilty to the wrongful possession of child pornography while on active duty in 2010. The charges, however, weren’t preferred until 2015, when Ferrando was a reservist. He was involuntarily activated for the purpose of receiving the preferred charges and for trial, but the orders activating him referenced 10 U.S.C. § 12301(d) (which requires the reserve member consent to the activation) rather than Article 2(d) (which does not require consent). This is an error of notable recent frequency in the Air Force. See United States v. O’Connor, No. 38420 (A.F. Ct. Crim. App. Feb. 12, 2015) (link to slip op.); United States v. Toro, Misc. Dkt. No. 2013-23 (A.F. Ct. Crim. App. Oct. 2, 2013) (link to order).

The Secretary of the Air Force approved Ferrando’s recall as needed for trial, making it possible for Ferrando to receive a sentence to confinement. See Article 2(d)(5). Ferrando then signed a pretrial agreement that limited his confinement to 90 days, and he challenged the existence of court-martial jurisdiction at trial. The military judge rejected that challenge, and the CCA agrees.

Writing for the panel, Judge Speranza explains:

Appellant committed his offense while on active duty. Importantly, Appellant retained his military status as a reservist, thus remaining subject to court-martial jurisdiction.

Slip op. at 5. As for the reference to § 12301(d) rather than Article 2(d), Judge Speranza notes:

[A]n administrative or clerical error committed by the Air Force in properly exercising its statutory jurisdiction over a member does not divest the court-martial of its otherwise lawful jurisdiction over that member.

Slip op. at 8.

Later this month, for the tenth year in a row, we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in the comments or by email to Zack@CAAFlog.com

This week at SCOTUS: The SG filed the requested response to the cert. petition in Bartee; it is available here. The SG also filed a response to the petition in Tso; it is available here. Finally, the SG received an extension of time to file a response to the petition in Richards.

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 arguments at CAAF are on January 9, 2018

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 11, 2018. The argument will be held at New England School of Law, Boston, Massachusetts.

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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

A recent published decision by the Army CCA, in United States v. Russell, __ M.J. __, No. 20130463 (A. Ct. Crim. App. Sep 28, 2017) (link to slip op.) grappled with a military judge’s comments made prior to adjudging a sentence of confinement for life without the possibility of parole, reduction to E-1, and a dishonorable discharge.

“While deployed to Iraq, appellant fatally shot five service members at the Camp Liberty Combat Stress Clinic (CSC). Appellant suffered from mental illness and was seen by several mental health practitioners during the days immediately preceding the offenses.” Slip op. at 2. For this, Sergeant (E-5) Russell pleaded guilty to attempted premeditated murder and five specifications of premeditated murder in violation of Articles 80 and 118, and the convening authority approved the sentence as adjudged.

Immediately prior to announcing the sentence, the military judge said:

Like everyone, I have great compassion for the victims of Sergeant Russell’s crimes. I have never been so grieved as I have been by learning of the impact of Sergeant Russell’s crimes on the lives of so many, including his own family. They are indelible, unchangeable, and of an indescribable magnitude.

Sergeant Russell, I want you to know that I have compassion for you. I have anguished over both the findings and the sentence I am about to impose. No person is fully defined by his behavior at a moment in time. I know from your fellow soldiers, your sisters, your brother-in-law, your son, your mother, and your wife, that you have the capacity for good. You have endured much in your life, including some things that only soldiers must endure. And I know that good has resided in you.

You also have enormous capacity for evil, as great an evil as human beings are capable of possessing. As for the debate between the prosecution and the defense as to whether every person categorically is or is not capable of committing a certain act, in your case, that subject is not a matter of debate. I agree with you, Sergeant Russell, you are not a monster, but you have knowingly and deliberately done incredibly monstrous things. You bear the full responsibility of your decisions and your actions; and I am obligated to adjudicate the consequences. And you must, and I believe that you will, accept those consequences.

Sergeant Russell, you have forced many to drink from a bitter cup, and that includes this court. That cup is now before you.

Slip op. at 4-5. The CCA specified an issue questioning whether these remarks reflect improper sentencing considerations, but concludes that they do not.

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Just filed and available here.

The summary of the argument includes:

I. The President’s appointments of Judges Burton, Celtnieks, Herring, and Mitchell to the CMCR did not violate 10 U.S.C. 973(b). And even if they did, petitioners would not be entitled to relief from the CCA decisions affirming their convictions because Congress specifically provided that Section 973(b) does not invalidate the subsequent actions of a military officer who accepts a covered civil office. . .

II. A military officer’s simultaneous service on a CCA and the CMCR does not raise questions under the Appointments Clause or the Commander-in-Chief Clause. Petitioners identify nothing in the text or history of the Appointments Clause, or in this Court’s decisions, to support their assertion that the Clause imposes an ill-defined “incompatibility” or “incongruity” limitation on the circumstances in which an individual may hold two separate federal offices. And even if such a limit existed, it would not be implicated here. A military judge’s simultaneous service on a CCA and the CMCR is no more “incongruous” or “incompatible” than a district judge’s service on the Foreign Intelligence Surveillance Court or a circuit judge’s service on a three-judge district court. And petitioners’ argument that the Commander-in-Chief Clause does not permit the restrictions on removal that petitioners assume are triggered by presidential appointment to the CMCR rests on the erroneous premise that Judges Burton, Celtnieks, Herring, and Mitchell are not subject to 10 U.S.C. 949b(b)(4), the statutory provision governing reassignment of military judges serving on the CMCR.

III. This Court lacks jurisdiction in Dalmazzi and Cox, but has jurisdiction in Ortiz. . . .

IV. If the Court concludes that it has jurisdiction in Dalmazzi and Cox, it should not disturb the CAAF’s discretionary denials of review. The CAAF did not abuse its discretion in vacating its grants of review and denying the petitions in those cases when it discovered that the questions it had agreed to decide were not squarely presented.

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

United States v. Harpole, No.17-0171/CG (CAAFlog case page): Oral argument audio.

United States v.  Honea III, No.17-0347/AF (CAAFlog case page): Oral argument audio.

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

United States v. Katso, No.17-0326/AF (CAAFlog case page): Oral argument audio.

United States v. Chisum, No.17-0199/AF (CAAFlog case page): Oral argument audio.

Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.

The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).

After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).

Last Friday, General Baker filed a supplemental brief. A copy is available here.

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CAAF will hear oral argument in the Air Force case of United States v. Honea III, No.17-0347/AF (CAAFlog case page), on Wednesday, December 6, 2017, after the argument in Harpole. The court granted review of two issues involving the appellant’s conviction of assault consummated by a battery in violation of Article 128 as a lesser included offense of abusive sexual contact by causing bodily harm in violation of Article 120(h) (2007):

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the government to proceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

Captain (O-3) Honea was charged with numerous offenses. One alleged a sexual touching as abusive sexual contact in violation of the version of Article 120 in effect from 2007-2012. But the military judge determined that the specification failed to state a sexual offense. Instead, the military judge found that the specification stated only the lesser included offense of assault consummated by a battery, and Honea pleaded not guilty to that offense.

The wording of the specification charged Honea with touching the alleged victim’s vulva, but the evidence supported that he touched only her pelvic region. At the conclusion of the evidence, the military judge discussed the wording of the specification with the parties, and Honea’s defense counsel submitted language that alleged only a touching of the pelvic region. The military judge then found Honea guilty of that touching and not guilty of all other allegations, and sentenced him to confinement for 30 days and to be dismissed.

On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva. The Air Force CCA rejected the challenges, finding that assault consummated by a battery is a lesser included offense (LIO) and also finding that:

the military judge, at the request of the Defense and with the concurrence of the Government, found Appellant guilty of a specification that differed slightly from that alleged, we must consider whether this was permissible. We conclude that the Defense’s submission of the modified specification constituted a request for a minor change and, with the concurrence of the Government, it was permissible for the military judge to accept this change. . . .

Even if we concluded this was a major change, the change would still be permissible. Not only did Appellant fail to object to the change, he proposed it.

United States v. Honea, No. 38905, slip op. at 10 (A.F. Ct. Crim. App. Feb. 15, 2017).

CAAF is reviewing both of those findings.

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CAAF will hear oral argument in the Coast Guard case of United States v. Harpole, No.17-0171/CG (CAAFlog case page), on Wednesday, December 6, 2017, at 9:30 a.m.

The case involves statements made by the appellant to a military victim advocate regarding the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, __ M.J. __ (C.A.A.F. Nov. 29, 2017) (CAAFlog case page).

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CAAF will hear oral argument in the Air Force case of United States v. Chisum, No.17-0199/AF (CAAFlog case page), on Tuesday, December 5, 2017, after the argument in Katso. A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege):

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

The scope of Mil. R. Evid. 513 has been a hot topic recently (see posts categorized here). Congress ordered modification of the rule the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here). But those modifications are not at issue in this case because it was tried before they took effect.

Precisely what is at issue, however, is hard to tell because both of Chisum’s briefs are sealed, and the Air Force Appellate Government Division’s brief is heavily redacted; out of 47 numbered pages, 19 are totally redacted and 5 are partially redacted. The only brief that isn’t redacted is an amicus brief filed by the victims-rights group Protect Our Defenders in support of the Appellate Government Division that argues that the privilege trumps any constitutional rights of the accused (but that the conviction should be affirmed nevertheless).

What we do know about the case, however, is that a special court-martial composed of officer members convicted Senior Airman Chisum was of a single specification of wrongful use of cocaine on a single occasion, and sentenced him to confinement for 3 months, reduction to E-1, forfeiture of $1031.00 pay per month for 3 months, and a bad-conduct discharge. The convening authority approved only 49 days of the adjudged confinement.

The mental health records at issue belong to two prosecution witnesses who testified about using drugs with Chisum. The Air Force CCA observed that “the credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.” United States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016) (discussed here). But the CCA concluded:

Based upon our review of the mental health records at issue in this case, we are convinced that any error in failing to provide any portion of those records to the Defense was harmless beyond a reasonable doubt. The Defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records, and, after considering the entirety of the trial, the additional information contained in the records would not have changed the substance or effectiveness of their cross-examination or defense theory.

Chisum, 75 M.J. at 950. This seemed to be an entirely ordinary conclusion, except that:

On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court.

Chisum, 75 M.J. at 946 n.3. A CCA obtaining and reviewing mental records not obtained at trial is rather extraordinary.

Those records, however, produced so willingly then and discussed so casually in the CCA’s published decision, are now guarded so carefully that it’s impossible to determine what CAAF is going to focus on during tomorrow’s argument. This is despite the fact that the witnesses – who seem otherwise entirely unrelated to Chisum – are identified only by initials.

The Air Force Government Appellate Division’s brief, however, gives a hint of what the court might discuss.

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