This week at SCOTUS: The Solicitor General applied for and received an extension of time to file a cert. petition in United States v. Collins, No. 18A1257. CAAF summarily affirmed the Air Force CCA’s decision in Collins (noted here) in light of Briggs, and then it granted Collins a writ of habeas corpus (noted here).

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 has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 27, 2019, at 10 a.m.:

United States v. Bergdahl, No. 20170582

Issues:
I. Whether the President can unlawfully influence—within the meaning of Rule for Courts-Martial 104—a court-martial the President did not personally convene. The parties should be prepared to discuss the references to apparent unlawful influence by the Secretary of the Air Force in United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).

II. If appellant has offered at least some evidence of unlawful influence, has the government demonstrated—beyond a reasonable doubt—that both (a) the appearance of unlawful influence did not place an intolerable strain on the public’s perception of the military justice system and (b) an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the Convening Authority’s Action? If so, how?

III. If the Convening Authority’s Action was not free from unlawful influence, what—if any—remedy is required?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The Solicitor General received a second extension of time to seek cert. in Briggs.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, June 19, 2019, at 10 a.m.:

United States v. Hollenbeck, No. 20170237

Issue: Whether the military judge abused his discretion when denying the defense challenge for cause of major SW.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

On Wednesday CAAF issued a short, per curiam opinion in the Air Force case of United States v. McGriff, __ M.J. __, No. 19-0206 (CAAFlog case page) (link to slip op.). The opinion is puzzling. CAAF did not grant review in McGriff, and the opinion merely explains that the denial of the review “carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the [law].” Slip op. at 1-2. In other words, CAAF has no opinion about the case.

The Air Force CCA’s decision in the case is available here. McGriff was an Air Force Staff Sergeant (E-5) who pleaded guilty in 2017 to sexual abuse of a child and was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge. McGriff was then confined at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. While confined, McGriff participated in numerous sexual acts with a member of the USDB staff, an Army Staff Sergeant (E-6) identified by the CCA as SSG TH. Sexual acts between USDB staff members and prisoners are, of course, strictly prohibited. After the sexual acts, McGriff tested positive for gonorrhea, a disease that SSG TH later admitted to criminal investigators he had in the past. SSG TH was also HIV-positive, a fact he did not disclose to McGriff.

On appeal, McGriff asserted that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55 of the UCMJ, or that the sexual acts with the USDB staff member otherwise justify reduction of his sentence as a matter of sentence appropriateness under Article 66 (an option affirmed by CAAF in United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page)). A three-judge panel of the Air Force CCA agreed, finding a violation of both the Eighth Amendment and Article 55, and also finding that relief is warranted under Article 66, and it reduced McGriff’s sentence by one year. McGriff then petitioned CAAF for review of a single issue:

Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.

The wording of the issue is a little puzzling because the CCA didn’t actually conduct a review of prejudice from the cruel and unusual punishment. The only use of the term prejudice in the CCA’s opinion involves a separate issue (post-trial delay), and the CCA granted relief for the punishment after applying a three-part test articulated by CAAF in United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), and based on Farmer v. Brennan, 511 U.S. 825 (1994), that does not require a showing of prejudice. Furthermore, a quick review of the law suggests that the Eighth Amendment violation might be inherently prejudicial. See In re Hernandez-Miranda, No. 16-12893-J, 2016 U.S. App. LEXIS 13205, at *14 (11th Cir. June 28, 2016) (available here) (Martin, J., dissenting). But it’s likely that what McGriff wanted was for CAAF to grant review and either give him more relief (a greater reduction of his sentence) or order the CCA to apply some set of factors that would lead to more relief.

CAAF, however, denies review and issues the per curiam opinion that states, in its entirety:

On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition. However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case).

Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value).

(paragraphing added) (footnote omitted).

It’s hard to understand why CAAF writes that now, in this case, and this way (and I’ve spent some time enlarging the forehead-shaped dent in my desk trying to figure it out). CAAF has periodically reminded counsel during oral arguments that a denial of review is not an endorsement of the opinion below. One recent and notable example was in the oral argument of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016), and the court’s subsequent decision in Hills (an Army case) was a reversal of the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). Similarly, CAAF’s recent decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), shows that court will reverse even oft-applied, decades-old precedent when the circumstances are right.

But McGriff doesn’t present any obvious challenge to any precedent, and even if the CCA’s finding of cruel and unusual punishment is wrong, Gay makes it clear that the court has plenary authority to reduce the sentence under Article 66 anyway. Accordingly, all CAAF’s denial of review really does is deprive the Supreme Court of jurisdiction to consider a petition for certiorari. See 28 U.S.C. § 1259.

CAAF decided the Army case of United States v. Gonzales, __ M.J. __, No. 18-0347/AR (CAAFlog case page) (link to slip op.), on Friday, June 7, 2019. Analyzing the version of Article 120 effective from 2007-2012, the court holds that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child. Nevertheless, reviewing the appellant’s conviction of the lesser offense for plain error (because there was no objection at trial), CAAF finds that the error is not plain or obvious because the law was unsettled, and the court affirms the conviction.

Judge Maggs writes for a unanimous court.

Specialist (E-4) Gonzales was convicted by a general court-martial composed of a military judge alone of aggravated sexual contact with a child, aggravated sexual abuse of a child, indecent liberty with a child, and child endangerment, and sentenced to confinement for 22 years, reduction to E-1, total forfeitures, and a dishonorable discharge. CAAF’s review involves only the conviction of aggravated sexual contact with a child. Gonzales was actually charged with the offense of rape of a child, with a specification that alleged that he:

engage[d] in a sexual act, to wit: penetrating, with his penis, the vulva of Miss AP, a child who had not attained the age of 12 years.

Slip op. at 9 (marks omitted). The evidence at trial, however, did not prove the element of penetration, and the military judge acquitted Gonzales of rape but convicted him of aggravated sexual contact, ostensibly as a lesser included offense. The two offenses are different, in that rape of a child (in violation of Article 120(b) (2006)) requires a sexual act (potentially without any specific intent), while aggravated sexual contact requires only sexual contact but with specific intent. The defense did not object when the military judge announced the findings, and CAAF eventually granted review to determine:

Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Applying both versions of the elements test outlined in United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018) (CAAFlog case page), Judge Maggs explains that the statutory elements of aggravated sexual contact with a child are not necessarily included in the statutory elements of rape of a child, and that the charge sheet did not provide notice of the different elements of the sexual contact offense. Accordingly, the military judge erred in convicting Gonzales of aggravated sexual contact with a child. The error, however, was not plain or obvious because “it was subject to reasonable doubt both at the time of trial and on appeal,” slip op. at 10, and so – because Gonzales failed to object at trial – he gets no relief.

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This week at SCOTUS: The cert. petition in Hale was denied on June 3, 2019. Additionally, on May 22, 2019, an application for extension of time to file a cert. petition was granted in Richards v. Deborah Lee James, Secretary of the Air Force, et al., No. 18A1205.

Richards is a Lieutenant Colonel who was convicted of possession of child pornography and indecent acts with a child, and sentenced to confinement for 17 years, total forfeitures, and a dismissal. The Air Force CCA and CAAF affirmed the findings and sentence in United States v. Richards, No. ACM 38346, 2016 CCA LEXIS 285 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76 M.J. 365 (C.A.A.F. 2017) (CAAFlog case page), with CAAF holding that a search authorization for electronic media need not include a temporal limitation so long as the authorization is otherwise sufficiently particularized. The Supreme Court denied cert. in 2018. Richards also filed numerous petitions for extraordinary relief with the military appellate courts, including petitions for habeas corpus that were denied on the basis of the Air Force Court’s holding that it lacks habeas jurisdiction in a case when direct review is over. Thereafter, CAAF dismissed a writ-appeal petition for lack of jurisdiction. Richards v. James, 78 M.J. 323 (C.A.A.F. 2019) (sum. disp.).

It seems that Richards is planning to file a new cert. petition challenging the holding of no jurisdiction. We’ve previously observed, however, that the Supreme Court does not have jurisdiction to review CAAF’s denial of a writ-appeal.

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 has completed its oral argument schedule for the current term, and announced the following oral argument dates for next term:

October 2019: 16 (Project Outreach, BYU),17 (Project Outreach, Hill AFB), 22, 23
November 2019: 5, 6
December 2019: 3, 4
January 2020: 14, 15
February 2020: 11, 12
March 2020: 17, 18
April 2020: 7, 8, 9 (Project Outreach 7 – 9), 21, 22
May 2020: 5, 6, 12, 13
June 2020: 2

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 19, 2019.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows an oral argument scheduled for this Wednesday, June 12, 2019, at 1500, involving an alleged victim’s petition for a writ of mandamus under Article 6b, however, I’ve been informed that that alleged victim wants to withdraw the petition. Nevertheless, the following information is available on the CCA’s website:

In re K.M.O. (previously 3), NMCCA No.201900060

Case Summary: The Military Judge issued an interlocutory ruling granting the Accused’s (Real Party in Interest) Motion to Compel Production and ordered the United States to produce information about the Petitioner that the Petitioner argues is privileged. Petitioner filed a Petition for Extraordinary Relief in the nature of a writ of mandamus at this Court.

Issues:
I.What is the Standard of Review that the Court should apply to a petition for a writ of mandamus to enforce Article 6b, UCMJ?

II.Is the information about the Petitioner ordered to be produced by the Military Judge privileged under Military Rule of Evidence 513

CAAF decided the Army case of United States v. Gleason, __ M.J. __, No. 18-0305/AR (CAAFlog case page) (link to slip op.), on June 6, 2019. The court rejects a novel specification under Article 134, concluding that it is barred by the prohibition in the Manual for Courts-Martial against charging a novel specification when the offensive conduct is already covered by an offense enumerated in the Manual. CAAF reverses the decision of the Army CCA, dismisses the specification at issue, sets aside the sentence, and remands for further proceedings.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan and Judge Maggs both dissent, each filing an opinion.

CAAF granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Article 134 criminalized three categories of conduct: “[1] all disorders and neglects to the prejudice of good order and discipline in the armed forces, [2] all conduct of a nature to bring discredit upon the armed forces, and [3] crimes and offenses not capital.” 10 U.S.C. § 934. The President – exercising his rulemaking authority under Article 36 – enumerated in the Manual for Courts-Martial a wide variety of offenses that may be charged as violations of Article 134 (like obstruction of justice, child pornography offenses, and extramarital sexual conduct (formerly adultery)). Outside of those enumerated offenses, however, servicemembers may also be charged with other, novel, violations of Article 134, so long as the conduct falls into one of the three statutory categories. But the President also prescribed three specific conditions for how such novel specifications may be used:

  • The first is the preemption doctrine, which states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page).
  • The second is that “a capital offense may not be tried under Article 134.” ¶ 91.c.(5)(b), Part IV, Manual for Courts-Martial (2019 ed.).
  • The third – and the one at issue in this case – is the provision that “if conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.” ¶ 91.c.(6)(a), Part IV, Manual for Courts-Martial (2019 ed.) (formerly ¶ 60.c.(6)(a)).

Two years ago, United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF interpreted that third condition as flatly prohibiting use of a novel specification to allege an offense under Article 134 where the offense is already listed inside the Article’s framework. Reese involved a specification that functionally alleged the offense of obstruction of justice – as enumerated by the President under Article 134 – without requiring the prosecution to prove two of the four elements of obstruction. Reese was quickly applied in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), to reverse two novel specifications that were encompassed by the enumerated offense of indecent language.

Now, in Gleason, CAAF applies Reese to a specification that alleged that:

[Appellant] knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police and that such conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Slip op. at 4 (modifications in original). The majority finds that the conduct at issue “falls squarely within the President’s explanation of the obstruction of justice offense.” Slip op. at 5. The dissenters, however, would hold that “the novel specification here is not contained within the elements of the listed Article 134, UCMJ, [offense] of obstruction of justice.” Diss. op. of Ryan, J., at 3 (citing Diss. op. of Maggs, J. at 1-4).

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CAAF decided the Army case of United States v. Tovarchavez, __ M.J. __, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.

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

CAAF granted review of a single issue:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object to the instruction. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.

Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).

Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies: the error must be harmless beyond a reasonable doubt and an “error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).

Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.

Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:

the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.

United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):

Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .

But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.

Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.

In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.

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This week at SCOTUS: The cert. petition in Cooper was distributed for conference on June 13. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF’s oral argument schedule includes one more date for argument this term – June 4, 2019 – however there are no scheduled oral arguments.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 19, 2019.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 12, 2019.

This past week, the Government Accountability Office (GAO) published its’ latest report to the House Committee on Armed Services, entitled: DoD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities.

From that title, one might presume that the GAO was merely advising lawmakers on the military services’ inadequate bookkeeping. And, indeed, the report does spend some time highlighting the armed forces’ deficient efforts “to collect and maintain consistent information about race and ethnicity in their investigations, military justice, and personnel databases.” Report at 22. However, despite lackluster database utilization by DoD and DHS agencies, enough data was apparently present for GAO reach this core conclusion:

Our analysis of available data identified racial and gender disparities in all of the military services for service members with recorded investigations, and for four of the military services for trials in special and general courts-martial, but these disparities generally were not present in the convictions or punishments of cases. These findings suggest disparities may be limited to particular stages of the military justice process for the period covered by our analysis.

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CAAF decided the Army case of United States v. Lewis, __ M.J. __, No.19-0109/AR (CAAFlog case page) (link to slip op.), on Thursday, May 30, 2019. In this interlocutory appeal of a military judge’s ruling that suppressed three statements made by the accused, CAAF affirms the decision of the Army CCA that reversed the military judge’s ruling as to the third (and most damaging) statement, allowing its admission into evidence at the accused’s court-martial.

Chief Judge Stucky writes for all but Judge Ryan, who concurs with the majority’s opinion in full but writes separately in order to express skepticism about CAAF’s jurisdiction to grant an accused’s petition for review of a prosecution interlocutory appeal.

CAAF granted review of one issue:

Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Specialist (E-4) Lewis is charged with the sexual assault of a child and faces trial by general court-martial. Prior to being charged, Lewis was interrogated by Army criminal investigators on three occasions. On the first occasion the lead investigator – identified in the opinion as Investigator Lizivette Delgado, even though she “has since changed her last name,” slip op. at 3 n.3 – deliberately did not give Lewis the mandatory rights advisory because she “feared that [Lewis] might invoke his Article 31(b) rights if she brought them to his attention.” Slip op. at 3-4 (citation omitted). Lewis made some admissions during that first interrogation. One month later he was interrogated again but by a different agent who promptly gave a rights warning. Lewis waived his rights and made more admissions. Finally, one month after the second interrogation Lewis was interrogated by a third agent, warned about his rights, waived his rights, agreed to take a polygraph examination, and:

became “overwhelmingly sad and then admitted to penetrating Miss ZC’s vagina with his finger after she had told him no.” He stated he had done this in an attempt to convince Miss ZC to have sex with him.

Slip op. at 5 (quoting United States v. Lewis, 78 M.J. 602, 608 (A. Ct. Crim. App. 2018)).

Lewis moved to suppress the fruits of all three interrogations at trial and the military judge agreed, concluding that the prosecution failed to prove that any of Lewis’ statements were voluntary. The prosecution appealed that ruling under Article 62 for the second and third interrogations, and the Army CCA agreed in part. The CCA affirmed the suppression of the second interrogation but reversed the suppression of the third interrogation, concluding that the military judge made an erroneous finding of fact and applied the wrong law. Lewis then petitioned CAAF for review of that decision.

Chief Judge Stucky’s opinion conducts a necessarily fact-specific analysis of the issue to reach the same conclusions as the Army court: The military judge made a clearly-erroneous finding of fact (regarding whether Lewis suffered from adjustment disorder at the time of the third interrogation based on a diagnosis of that condition six months after the interrogation), slip op. at 10-11, and the military judge “erred by failing to distinguish between the three interrogations,” slip op. at 13. Accordingly, CAAF holds that the suppression of the fruits of the third interrogation was an abuse of discretion.

Judge Ryan’s separate opinion poses no challenge to Chief Judge Stucky’s decision in this particular case, however it lobs a firebomb into CAAF’s jurisprudence involving interlocutory appeals. She writes:

I write separately only to express my skepticism that an accused may permissibly appeal an adverse ruling of a Court of Criminal Appeals (CCA) where the case came before the CCA as an interlocutory appeal by the government under Article 62, UCMJ, 10 U.S.C. § 862. I fully recognize that this Court has long considered petitions in this posture without question, even rarely granting and deciding cases in favor of the accused. See, e.g., United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). Nevertheless, this practice runs contrary to the well-established principles guiding criminal appeals.

. . . We should therefore be hesitant to extend the purview of interlocutory appeals under Article 62, UCMJ, absent compelling justification.

Con. op. at 1. What follows is a truncated analysis of Article 62 (that authorizes interlocutory appeals by the prosecution only “under the strict requirements specified by Congress,” con. op. at 4) and the observation that “there is no reason Article 62, UCMJ, must or should be read to give an accused the opportunity to appeal.” Con. op. at 2.

Judge Ryan’s belief that Article 62 should be read narrowly is nothing new; she authored a dissenting opinion in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that concluded that CAAF lacked jurisdiction to review any interlocutory appeal. Her decision to question the court’s jurisdiction in this case, however, where the Gov’t Division’s brief conceded that the court has jurisdiction (and the Division was not asked about that concession during oral argument), is hard to understand in light of recent events. Specifically, just 15 months ago, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF not only granted review of an accused’s petition in an interlocutory case, but it decided the case in favor of the accused on an issue other than the one specified in the original grant and presented at oral argument. CAAF’s decision in Mangahas was a surprising reversal of decades of precedent, had an immediate effect on a number of relatively high-profile cases, and was the #3 Military Justice Story of 2018.

The author of that unanimous opinion? Judge Ryan.

Furthermore, Judge Ryan belittles CAAF’s decision to grant review:

This case is a perfect example of needless delay and interruption. There is no colorable claim that Appellant was entitled to relief, as the CCA clearly explained. We nonetheless interrupted the trial—at which Appellant may still yet be acquitted—for an additional period of time only to conclude that the CCA was precisely correct.

Con. op. at 4-5 (emphasis added). CAAF has discretionary jurisdiction and it rejects the vast majority of petitions for review. The court rejects so many petitions that it didn’t fill its oral argument calendar this term. Or last term. Or the term before that. Yet it granted review in this case. Judge Ryan’s castigation of this appeal as “a perfect example of needless delay and interruption,” and as presenting “no colorable claim” suggests that the court was either bamboozled into granting review, or that it granted review in this case – and maybe denied review in other cases – for the wrong reasons.

Case Links:
ACCA opinion (78 M.J. 602)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Marine Corps case of United States v. Hutchins, __ M.J. __, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

Read more »

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Cooper. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF’s oral argument schedule includes one more date for argument this term – June 4, 2019 – however there are no scheduled oral arguments.

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

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

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

United States v. Coleman, No. 19-0087/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

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

United States v. English, No. 19-0050/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Navarette, No. 19-0066/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

Audio of the oral argument in Unites States v. Sager, No. 201400356, on May 1, 2019, at the Navy-Marine Corps CCA is available on the CCA’s website here and also on our oral argument audio podcast.