CAAF decided the Marine Corps case of United States v. Gilbreath, __ M.J. __, No. 14-0322/MC (CAAFlog case page) (link to slip op.), on Thursday, December 18, 2014. The court finds that the protections of Article 31(b) apply to members of the Individual Ready Reserve and that a rights warning was required under the facts of this case, reversing the decision of the Navy-Marine Corps CCA and the appellant’s conviction of larceny of a pistol.

Chief Judge Baker writes for a unanimous court.

CAAF reviewed two issues in this case (the first granted, the second specified by the court):

I. Whether Individual Ready Reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.

II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Appellant, a Corporal (E-4), was an inactive reservist who had completed his active duty service obligation in January 2011. However, prior to his discharge, Appellant stole a pistol from his unit’s armory where he served as a custodian. Sergeant (E-5) Muratori, who was Appellant’s former supervisor, friend, and roomate, was tasked with locating the missing pistol. The Sergeant contacted Appellant and asked about the pistol, and became suspicious that Appellant had the pistol when he heard Appellant’s answer. The Sergeant then directly asked Appellant if he had the pistol, and Appellant admitted that he did.

At no point did the Sergeant advise Appellant of his Article 31(b) right to remain silent.

Appellant was recalled to active duty for prosecution and charged with larceny of the pistol. His defense counsel moved to suppress his statements due to the lack of a rights warning. But the military judge denied the motion, finding that “Appellant was not subject to the UCMJ and thus not entitled to the added protections of Article 31(b),” and further that “Sgt Muratori was not acting in a law enforcement or disciplinary function, and therefore was not required to warn against self-incrimination.” Slip op. at 9-10 (marks omitted). Appellant was then convicted of the larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and he was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

On appeal, a three judge panel of the Navy-Marine Corps CCA unanimously affirmed. United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.). The court disagreed somewhat on the legal analysis, with one judge applying the Duga test (that was later abrogated by CAAF in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2104) (CAAFlog case page)) to find that a rights warning was not required because Appellant did not subjectively perceive the Sergeant’s questioning as involving more than a casual conversation. But the other two judges concluded that the legislative history of Article 31(b) and case law “clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).” Gilbreath, No. 201200427, slip op. at 6. CAAF then granted review in June (about three weeks before publishing its decision in Jones).

In my argument preview in this case, I predicted that CAAF’s decision would be a significant precedent. Chief Judge Baker’s opinion for the unanimous court doesn’t disappoint.

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After a contested trial before a general court-martial composed of officer members, the appellant in United States v. Mitchell, No. 20130033 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), was convicted of a number of offenses. Among those convictions was one for wrongful receipt of stolen property of a value of over $500, in violation of Article 134. The specification alleged that the appellant wrongfully received a long list of items stolen from numerous identified individuals.

But Judge Penland, writing for a three-judge panel of the Army CCA, notes that:

The officer panel in this case returned a verdict of guilty to this specification, without exception. However, there was no direct or circumstantial evidence of the following at trial: that appellant received any stolen property belonging to SPC SS, Mrs. KR, or Mrs. JL; that appellant received a stolen Nintendo 3DS and more than two stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and more than three stolen Nintendo DS video games belonging to LTC PF. The findings of guilty to these portions of Specification 1 of Charge II are wholly unsupported by the evidence and thus legally insufficient. We are left to wonder how the guilty verdict of this specification in its entirety withstood the scrutiny of the military judge, staff judge advocate, and convening authority during post-trial processing.

Slip op. at 2.

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Fox and Friends had a segment last night, here, about alleged Brady violations in the court-martial of 1stLt Clint Lorance.  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent.  The new evidence included in a clemency petition to the CG of the 82nd Airborne  deals with the status of the two men that were shot as potential insurgents/jihadists.

Here is our prior coverage and coverage of the verdict, here (WaPo).  1stLt Lorance’s counsel (featured in the Fox video) provided us with a copy of the clemency materials, here.

Cases involving Military Rule of Evidence 807 – the residual exception to the hearsay rule – are relatively rare. CAAF last considered the issue in United States v. Czachorowski, 66 M.J. 432 (C.A.A.F. 2008) (discussed here), and it’s been almost four years since the last time we noted a CCA case involving the rule (see this post discussing United States v. Sparks, No. 201000275 (N-M. Ct. Crim. App. Feb. 15, 2011), rev. denied, __ M.J. __ (C.A.A.F. Jul. 27, 2011)).

However, last month the Air Force CCA considered the residual exception in an unpublished opinion in United States v. Betts, 38476 (A.F. Ct. Crim. App. Nov. 20, 2014) (link to slip op.). The court found that a military judge erroneously applied the exception to admit statements during the sentencing phase of a court-martial. However, the court found that this error was harmless because the case involved pleas of guilty and sentencing by a military judge alone, and the judge considered the hearsay for a limited purpose that was cumulative with other evidence.

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Having recently written about consent and mistake of fact as to consent as defenses to adult sexual offenses under the UCMJ, I was very interested in the NMCCA’s decision in United States v. Howard, No. 201300346 (N-M. Ct. Crim. App. Nov. 26, 2014) (per curiam) (link to slip op.). The CCA considered a sexual assault conviction where the military judge instructed the members on the defense of consent but not on the affirmative defense of mistake of fact as to consent. The NMCCA heard oral argument in the case (audio available here), with the following issue:

A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?

But in its decision the CCA doesn’t actually answer this question, instead concluding that any error was harmless.

Read more »

Back in September, in this post, Sam analyzed the Coast Guard CCA’s opinion in United States v. Riesbeck, No. 1374 (C.G. Ct. Crim. App. Aug. 5, 2014) (link to slip op.). The CCA affirmed a trial-stage ruling that the appellant’s counsel waived a challenge to the court-martial panel’s composition (the panel appeared to be stacked with female members) by failing to object soon enough. In his analysis, Sam noted that “[RCM] 912(b)(3) provides that the issue is not waived where there is a violation of RCM 502(a)(1).”

On Thursday, December 11, CAAF took the following action in the case that shows that Sam’s analysis was right on:

No. 15-0074/CG. U.S. v. John C. Riesbeck. CCA 1374.  On consideration of Appellant’s petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, we conclude that the issue of improper member selection was not waived because of the exception contained in Rule for Courts-Martial (RCM) 912(b)(3) to the timeliness requirement of RCM912(b)(1). On its face, RCM 912(b)(3) provides an exception to waiver where the objection is made on the basis of an allegation that the convening authority selected members in violation of RCM502(a)(1) for reasons other than those listed in Article 25(d)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012): age, education, training, experience, length of service, and judicial temperament.  Furthermore, improper member selection can constitute unlawful command influence, an issue that cannot be waived. United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001). Because the exception of RCM 912(b)(3) should have applied, the question remains whether Appellant was deprived of a fair trial by an impartial panel. Accordingly, it is ordered that said petition is hereby granted on the following issue:


The decision of the United States Coast Guard Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Coast Guard for remand to the Court of Criminal Appeals for further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

CAAF also granted review in two Air Force cases last week.

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In a published decision in United States v. Williams, __ M.J. __, No. 38406 (A.F. Ct. Crim. App. Dec. 8, 2014) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s conviction for possession of child pornography is multiplicious with separate convictions for receipt and distribution of the same child pornography.

Read more »

The Hill reports here on the Senate’s final passage of the National Defense Authorization Act for Fiscal Year 2015. The complete text of the bill is available here.

The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:

  • Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
    • Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
    • Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
    • Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
    • Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
    • Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
    • Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
    • Technical changes to the new Article 6b (original text analyzed here and here);
    • Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
    • Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
  • Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
  • Section 535 enacts a new paragraph (e) in Article 6(b) that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
  • Section 536 limits the admissibility of good military character evidence, as follows:


(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

I’ve written about this before and I will write about it again in the coming weeks.

  • Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
  • Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.

This week at SCOTUS: The solicitor general waived the Government’s right to respond to the petition in Daniel. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on Wednesday, January 14, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 18, 2014, at 10 a.m.:

United States v. Chandler, No. 20120680

Issue: Whether the military judge abused his discretion when he held a hearing in revision, with the same panel, in order to correct an erroneous finding instruction.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 30, 2015.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, December 16, 2014, at 10 a.m.:

United States v. Parker

Case summary: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of three specifications of attempted violation of a lawful general order, one specification of willfully disobeying a lawful order of a superior commissioned officer, seven specifications of violation of a lawful general order, two specifications of consensual sodomy, four specifications of adultery, and one specification of solicitation of indecent conduct, in violation of Articles 80, 90, 92, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 890, 892, 925, and 934 (2012). The military judge sentenced the appellant to sixty months’ confinement, reduction to pay-grade R-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dishonorable discharge, ordered it executed.

Issue: Laws that treat constitutionally-protected acts differently must be rationally related to a legitimate state interest. Private, consensual sex and sodomy between adults are constitutionally protected. The maximum punishment for Article 125, UCMJ, consensual sodomy, includes five years of confinement. The maximum punishment for Article 92, UCMJ, consensual sex, includes only two years of confinement. Because this difference no longer serves any legitimate state interest, is the maximum punishment for Article 125 unconstitutional?

In United States v. Riley, 72  M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed the appellant’s plea of guilty to kidnapping of a minor in violation of Article 134 – an offense that triggers a sex offender registration requirement – after it concluded that “the military judge’s failure to ensure that [the appellant] understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of [the appellant’s] plea.” 72 M.J. at 122, slip op. at 18.

A recent published decision, a three-judge panel of the Army CCA rejects retroactive application of CAAF’s decision in Riley, denying a petition for extraordinary relief in the nature of a writ of coram nobis. Washington v. United States, No. 20140826, __ M.J. __ (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.).

Read more »

The difference between a picture of an unclothed minor and contraband child pornography has been a significant military law topic over the past few years. For instance, in this post from May, 2013, I analyzed the NMCCA’s decision in United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2014), that reversed guilty pleas to child pornography offenses on the basis that some of the images did not meet the federal definition of child pornography. Additionally, in this post from May, 2014, Phil analyzed the ACCA’s decision in United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014) that affirmed guilty pleas after making the opposite conclusion. CAAF subsequently granted review in Blouin in October (discussed here).

CAAF was also deeply divided in its recent decision in United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page), where it reversed pleas of guilty for wrongful possession of images of “nude minors” that did not amount to contraband child pornography.

Now, in a recent unpublished opinion in United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s pleas of guilty to wrongful possession and distribution of child pornography after it concludes that the two images at issue are not actually child pornography.

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In a two-page summary disposition in United States v. Rose, No. 20130068 (A. Ct. Crim. App. Oct. 24, 2014) (link to slip op.), pet. for rev. filed, __ M.J. __, No. 15-0218/AR (C.A.A.F. Dec. 9, 2014), the Army CCA finds that:

We agree with appellant that the evidence is factually insufficient to support his conviction for wrongful sexual contact. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The government did not prove beyond a reasonable doubt that appellant pressed his genitalia against the buttocks of the alleged victim.

Slip op. at 1-2. The court affirms the appellant’s other convictions, entered contrary to his pleas of not guilty at a general court-martial composed of a military judge alone, of aggravated sexual assault and assault consummated by a battery, in violation of Articles 120 and 128. The opinion provides no other facts of the case.

In a published opinion in United States v. Matthews, 73 M.J. 935, No. 1382 (C.G. Ct. Crim. App. Oct. 20, 2014) (link to slip op.), a three-judge panel of the Coast Guard CCA finds that a convening authority was disqualified from taking post-trial action in the appellant’s case because the convening authority is a pilot who flew search and rescue sorties searching for the appellant after the appellant deserted. As a result, the CCA remands the case for a new post-trial action by a different convening authority. Chief Judge McClelland writes for the panel, while Judge Gill dissents.

Read more »

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

United States v. Torres, No. 14-0222/AF (CAAFlog case page): Oral argument audio.

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page): Oral argument audio.

Additionally, audio of yesterday’s oral argument at the NMCCA in United States v. Oakley is available here. The issues are in this week’s TWIMJ.