In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

This week at SCOTUS: A new petition for certiorari was filed in Richards v. Donovan, et al., No. 19-55. The petition is available here. The case (previously discussed here) involves an Air Force 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), cert. denied, 138 S. Ct. 2707 (2018) (CAAFlog case page). 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.).

The case has a messy procedural history (with multiple petitions for extraordinary relief). In particular, there are three decisions (two orders and one opinion) on the Air Force CCA’s website addressing petitions for extraordinary relief. First, on October 19, 2018, the CCA denied a petition for a writ of mandamus in an unpublished decision. Richards v. James, No. 2017-04, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. Oct. 19, 2018) (available here). Then, on October 22, 2018, the CCA issued an order dismissing a habeas petition. Richards v. Wilson, No. 2018-07, 2018 CCA LEXIS 509 (A.F. Ct. Crim. App. Oct. 22, 2018) (available here). Finally, on December 7, 2018, the CCA issued an order dismissing a petition for a writ of mandamus (that seems to be based on the same underlying issue as the habeas petition). Richards v. Wilson, No. 2018-10, 2018 CCA LEXIS 562 (A.F. Ct. Crim. App. Dec. 7, 2018) (available here). As a result, there are three separate CCA docket numbers for petitions for extraordinary relief: 2017-04 (mandamus), 2018-07 (habeas), and 2018-10 (mandamus).

There are also multiple CAAF docket numbers. The only clear CAAF decision, however, is a summary disposition dismissing a writ-appeal petition for lack of jurisdiction. Richards v. James, No. 19-0093/AF, 78 M.J. 323 (C.A.A.F. 2019) (daily journal). According to CAAF’s daily journal, that writ-appeal was of the CCA’s action on the habeas petition (CCA No. 2018-07). I see no CAAF docket entries referencing the subsequent petition for mandamus (CCA No. 2018-10). It’s possible, however, that CAAF docket number 19-0166/AF – in which a motion for enlargement of time to file a writ-appeal was denied on February 6, 2019 – involves CCA No. 2018-10, even though CAAF’s daily journal associates that docket number with CCA No. 2018-07.

Richards’ cert. petition clearly references CAAF’s action on the habeas petition (78 M.J. 323, CAAF No. 19-0093/AF, CCA No. 2018-07), and it’s not clear that Richards filed a timely writ-appeal of the mandamus petition. Nevertheless, the body of the cert. petition challenges the CCA’s decision on the mandamus petition. The question presented is:

Can the Executive Branch divest an Article I military court of appeals of jurisdiction over an extraordinary writ brought under the All Writs Act, 28 U.S.C. § 1651(a), once jurisdiction has vested under the Uniform Code of Military Justice?

The Air Force CCA has held – seemingly in direct conflict with United States v. Denedo, 556 U.S. 904, 917 (2009) (rules of finality do not bar coram nobis jurisdiction) – that it lacks jurisdiction to grant extraordinary relief in a case that is final under Article 76. Sutton v. United States, 78 M.J. 537, 542 (A.F. Ct. Crim. App. 2018) (available here). Additionally, both the Air Force and the Army CCAs have held that they lack jurisdiction to grant habeas in a final case. See Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here); Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012). CAAF seems to agree, as it held in United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017), that it does not have jurisdiction to entertain a request for coram nobis in a final case (discussed here and here). The Solicitor General later disagreed with CAAF’s finding of no jurisdiction (noted here).

In other news, the Solicitor General received a second extension of time to file a cert. petition in Collins.

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’s website shows no scheduled oral arguments.

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.

CAAF decided the Army case of United States v. Coleman, __ M.J. __, No. 19-0087/AR (CAAFlog case page) (link to slip op.), on July 10, 2019. Reviewing for multiplicity in a case involving convictions of attempted murder (with a firearm) and of willfully discharging a firearm under circumstances to endanger human life, CAAF finds that the convictions are not multiplicious because each offense contains an element that the other does not.

Judge Ohlson writes for a unanimous court.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Coleman of numerous offenses, including one specification of attempted murder in violation of Article 80 (Specification 1 of Charge I), and one specification of willfully discharging a firearm under circumstances to endanger human life in violation of Article 134 (Specification of Charge VII). Both convictions related to Coleman firing a handgun at a car containing another soldier, that soldier’s fiancé, and the fiancé’s three-year old daughter. The Army CCA affirmed those convictions and CAAF granted review of a single issue:

Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Furthermore, when it granted review, CAAF specifically ordered that briefs be filed on only the issue of multiplicity and not on the related concept of unreasonable multiplication of charges (noted here).

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This week at SCOTUS: I’m not aware of any 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’s website shows no scheduled oral arguments.

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.

The latest volume of the Military Law Review (Volume 227, Issue 1) includes an article authored by the Army JAG School’s Criminal Law Chair, Colonel John Kiel, Jr., entitled, “’So You’re Telling Me There’s A Chance’: Why Congress Should Seize the Opportunity to Reform Article 37 (UCI) of the UCMJ.

Colonel Kiel insists that Congress needs to revise the language of Article 37(a). That statute, presently reads, in relevant part:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

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CAAF decided the Army case of United States v. Haynes, __ M.J. __, No. 18-0359/AR (CAAFlog case page) (link to slip op.), on July 2, 2019. A divided court reaches the narrow conclusion that the conduct of defense counsel at trial affirmatively waived the issue of credit for prior punishment (known as Pierce credit). Accordingly, CAAF affirms the decision of the Army CCA that denied credit in this case.

Chief Judge Stucky writes for the court, joined by Judges Ryan and Sparks. Judge Ohlson and Judge Maggs each write separate opinions that concur in the result (the denial of credit) but dissent from the finding of waiver.

Private (E-1) Haynes pleaded guilty to numerous offenses pursuant to a pretrial agreement. Two of those offenses were wrongful use of marijuana, and Haynes admitted that he smoked marijuana on an almost-daily basis in an effort to get kicked out of the Army. But in addition to his court-martial conviction for wrongful use of marijuana, Haynes also received nonjudicial (Article 15) punishment for wrongful use of marijuana in the same general time period. That raised the possibility that Haynes was punished twice – the first time by nonjudicial punishment and the second time by the court-martial – for a single offense.

Thirty years ago, in United States v. Pierce, CAAF’s predecessor explained that such double punishment, while not a violation of the Double Jeopardy clause of the Fifth Amendment or the similar protection in Article 44, “would violate the most obvious, fundamental notions of due process of law,” and so “an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” 27 M.J. 367, 369 (C.M.A. 1989) (emphasis omitted). Ten years later, in United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999), CAAF gave an accused four options regarding that credit: put the prior punishment into evidence at sentencing before members, raise it with the military judge alone, raise it with the convening authority (who, at the time, had unlimited power to reduce the sentence for that or any other reason), or not raise the issue of credit at all.

Haynes neither requested nor received any credit for his prior nonjudicial punishment at trial or when the convening authority acted. Instead, the issue was raised for the first time at the Army CCA. The CCA, however, found waiver, concluding that CAAF’s opinion in Gammons “requir[es] an accused to raise the issue of Pierce credit to either the court-martial or to the [convening authority] to avoid waiver as a matter of law.” United States v. Haynes, 77 M.J. 753, 756 (A. Ct. Crim. App. 2018). The CCA considered granting Haynes credit anyway (as part of its plenary review of the findings and sentence), but it determined that the facts of this case do not warrant relief despite the waiver. CAAF then granted review of two issues:

I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

In yesterday’s decision a majority of the court finds that the conduct of Haynes’ defense counsel at trial amounts to an affirmative waiver of the right to any credit for the nonjudicial punishment, with Chief Judge Stucky explaining that the majority does not reach – and so does not endorse – the question decided by the Army CCA (“whether Appellant also waived the issue of Pierce credit by operation of law,” slip op. at 5). Judge Ohlson and Maggs do not agree that the defense counsel’s conduct amounts to waiver, but they nevertheless agree that Haynes is not entitled to credit based on the record in this case.

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I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

CAAF decided the Air Force case of United States v. Voorhees, __ M.J. __, No. 18-0372/AF (CAAFlog case page) (link to slip op.), on June 27, 2019. Reviewing the closing arguments of an experienced Air Force prosecutor, CAAF finds clear or obvious error in the prosecutor’s personal attacks on Voorhees’ defense counsel, personal attacks on Voorhees himself, expressions of personal opinion, bolstering, and vouching, and it concludes that the “trial counsel’s misconduct amounted to grievous error.” Slip op. at 8. Not too grievous, however, because CAAF also finds that, in context, the “arguments were unlikely to prejudice the panel against Appellant.” Slip op. at 10. The court further concludes that the offense of conduct unbecoming an officer and gentleman, in violation of Article 133, is merely a general intent crime. Accordingly, CAAF affirms the five convictions of conduct unbecoming, the sentence, and the decision of the Air Force CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review of three issues:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees improperly communicated with subordinate females (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but that conviction was reversed by the Air Force CCA as factually insufficient in 2016, leaving Voorhees convicted of just the five specifications of conduct unbecoming. The CCA ordered a sentence rehearing on those convictions, and Voorhees was sentenced to a reprimand and to be dismissed.

Having won reversal of his sexual assault conviction at the CCA, Voorhees’ appeal to CAAF focused on his five convictions of conduct unbecoming, and CAAF granted review of two basic questions: Was the prosecutor’s closing argument improper, and does conduct unbecoming require a specific mens rea. CAAF rejects Voohees’ mens rea argument entirely, concluding that just like the military-specific offense of maltreatment considered in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), “there is no scenario where an officer who engages in the type of conduct [Voorhees] engaged in can be said to have engaged in innocent conduct.” Slip op. at 16 (marks and citation omitted).

Voorhees’ claim that the prosecutor used improper arguments to win the convictions, however, gets remarkably different treatment. Judge Sparks’ opinion for the unanimous court agrees with Voorhees that the arguments were improper, concluding that they “amounted to grievous error,” slip op. at 8, and Judge Sparks castigates the Air Force Appellate Government Division for defending the arguments (though says nothing about the Air Force CCA, which found no error). The opinion also contains a 513-word note on prosecutorial misconduct, slip op. at 12-13, that bemoans “the consistent flow of improper argument appeals to our Court” and ends with the aspirational principle announced last year that “every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” Slip op. at 13 (quoting United States v. Andrews, 77 M.J. 393, 404 (C.A.A.F. 2018) (CAAFlog case page)). Yet all of that is dicta, because “‘regardless of trial counsel’s improper arguments, there was ample evidence in support of’ Appellant’s convictions.” Slip op. at 11 (quoting Andrews, 77 M.J. at 403).

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This week at SCOTUS: The Court denied cert. in Cooper. 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’s website shows no scheduled oral arguments.

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.

Last month CAAF ordered the Army Government Appellate Division to file a response to a Grostefon issue questioning whether a military judge should have recused himself (noted here). Last week the court ordered the Army CCA to consider the issue:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, Appellee’s motion to remand, and Appellant’s motion to supplement the record, it is ordered that said petition is granted on the following personally asserted issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

That the motion to remand is granted, that the motion to supplement the record is denied without prejudice to raising the matter before the United States Army Court of Criminal Appeals, and the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for a new review and consideration of the aforementioned issue under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012) shall apply.

CAAF also summarily affirmed in two cases that were trailers to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), in which the court unanimously held that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

Finally, CAAF summarily affirmed in this Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. On further consideration of the granted issue, 78 M.J. 61 (C.A.A.F. 2018), and in view of Gamble v. United States, __ S. Ct. __ (2019), No. 17-646, 2019 U.S. LEXIS 4173, 2019 WL 2493923 (June 17, 2019), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

We noted CAAF’s grant of review in Greening here, and SCOTUS’ grant of review in Gamble here. The SCOTUS docket page for Gamble is here.

CAAF decided the Coast Guard case of United States v. Rodriguez, __ M.J. __, No.18-0350/CG (CAAFlog case page) (link to slip op.), on June 20, 2019. Reviewing a conviction of sexual abuse of a child that was based on the act of kissing the child’s feet, CAAF finds the evidence legally sufficient and affirms the conviction and the decision of the Coast Guard CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

There are four major versions of Article 120, UCMJ. The first was in effect from 1951 to 2007 and prohibited rape, which was defined as sexual intercourse by force and without consent. The second was in effect from October 1, 2007, to June 27, 2012, and it fundamentally reformed the prosecution of sex crimes under the UCMJ by codifying 36 separate offenses into the one, far-reaching Article. The third was in effect from June 27, 2012, until December 31, 2018, and it largely restyled the 2007 version by dividing it into Article 120 (for adult sex offenses), 120b (for child sex offenses), and 120c (for other sexual misconduct). Finally, the current version was enacted as part of the Military Justice Act of 2016, it took effect on January 1, 2019, and it largely mirrors the 2012 version.

Rodriguez involves the 2012 version; specifically, Article 120b(c) which defined (and still defines) the offense of sexual abuse of a child as committing a lewd act upon a child. A lewd act is a legal term of art that encompasses a wide variety of activity including any sexual contact. A sexual contact is also a legal term of art that is defined in Article 120 (and incorporated into Article 120b by reference). That definition, however, changed significantly between the 2012 and 2019 versions of Article 120. Under the 2012 version, a sexual contact included any touching of any part of the body if accompanied by a sexual intent:

(2) Sexual contact. The term ‘sexual contact’ means . . .

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Article 120(g)(2) (2012). Congress significantly narrowed the definition in the 2019 version, limiting a sexual contact to:

touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.

Article 120(g)(2) (2019). Rodriguez, however, involves the broader, 2012 definition.

Boatswain’s Mate Second Class (E-5) Rodriguez was convicted of sexual abuse of a child and adultery in violation of Articles 120b (2012) and 134, and sentenced to reduction to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. Rodriguez’s sexual abuse conviction was of this specification:

In that [Appellant], on active duty, did, at or near Nederland, Texas, on divers occasions, between December 2014 and April 2015, commit a lewd act upon V.G., a child who had not attained the age of 12 years, to wit: kissing V.G.’s feet with his lips, with an intent to arouse and gratify his own sexual desire.

Slip op .at 1-2 (emphasis added). The child and her mother (Rodriguez’s fiancé) both testified that Rodriguez kissed the child’s feet, though “their testimony indicates [Rodriguez] exhibited no outward signs he was kissing V.G.’s feet with an intent to arouse or gratify his sexual desire.” Slip op. at 3. Rather, Rodriguez’s sexual intent was proven by text messages that Rodriguez exchanged with his paramour (who was married to one of his subordinates). In those messages Rodriguez expressed a sexual fetish involving feet and also referenced V.G.

On appeal, Rodriguez challenged the legal sufficiency of the evidence to prove the existence of sexual intent at the time he kissed the child’s feet, characterizing the kissing as “a fatherly, nonsexual” act and the text messages “as pure sexual fantasy.” Slip op. at 3. CAAF, however, is unconvinced.

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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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