Nine months ago, in Riley v. California, 573 U.S. __, 134 S. Ct. 2473 (Jun. 25, 2014) (link to slip op.), the Supreme Court unanimously held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. An article in the March edition of The Army Lawyer addresses how this decision is likely to affect military justice, with a particular focus on CAAF’s interlocutory decision in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).

Though issued first, the Wicks decision is consistent with the Supreme Court’s decision in Riley. While the CAAF analyzed the privacy doctrine exception to the warrant requirement and the Supreme Court considered the search incident to a lawful arrest exception, both came to the same conclusion: cell phones implicate a unique privacy interest that is protected under the Fourth Amendment.

The major implications of Riley are twofold. First, the opinion rejected the application of the Supreme Court’s container search jurisprudence to cell phone searches. Instead, the Court affirmed a balancing test and held that test should weigh strongly in favor of an individual’s privacy interest when it comes to cell phones. Second, Riley introduced an unprecedented perspective on the Fourth Amendment in light of modern technology and set a new standard for courts to apply when considering technological advancements that arise in Fourth Amendment cases.

Lindsay Windsor, What Riley v. California Means for Military Justice, Army Law., March 2015, at 7, 10 (available here). Of note, the author clerks for CAAF’s Judge Stucky.

The article is a short and approachable analysis of cell phone (and, impliedly, other tech-based) privacy issues in the military. It also includes this particularly interesting analysis:

Soldiers often use their personal cell phones to communicate with other units for military purposes. Such use implicates serious security concerns, but personal privacy interests are at stake too. If the personal cell phone becomes the default work cell phone, an individual’s expectation of privacy in it may be reduced: the government’s interest in protecting sensitive information could permit a search of otherwise private communications on the personal cell phone. It is therefore in the interests of both national security and personal privacy for servicemembers to distinguish clearly their personal and professional use of government and personal electronic devices.

Windsor, supra, at 12.

CAAF decided the Air Force case of United States v. Piolunek, __ M.J. __, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page) (link to slip op.), on Thursday, March 26, 2015. The court sets aside its own recent decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), with the frank acknowledgement of: “We erred.” Slip op. at 4. CAAF draws a line between a case where members might have convicted an appellant on the basis of an unconstitutional statute or legal theory, and one where the conviction involves only a factual deficiency, and the court affirms Appellant’s child pornography convictions and the decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Judge Erdmann. He writes separately, dissenting in part but concurring in the result.

CAAF considered two issues in this case (one granted, the other certified), though it summarily rejected the certified issue as presenting a question of fact that the court lacks jurisdiction to consider:

Granted Issue: Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.

Certified Issue: Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of wrongful receipt of child pornography, one specification of wrongful possession of child pornography, one specification of enticing a minor child to send sexually explicit images, and one specification of communicating indecent language to a minor, all in violation of Article 134. He was sentenced to reduction to E-1, confinement for 18 months, and a dishonorable discharge.

Appellant’s convictions were related to his online communications with the teenage sister of a friend, during which he received sexually explicit images of the girl when she was 14 and 15 years old. He was charged with receipt and possession of child pornography in connection with those images, the Government admitted 22 images into evidence at trial, and Appellant was convicted. However, on review the Air Force CCA found that three of the 22 images did not meet the definition of child pornography at issue in the case. Specifically, in a published decision, the CCA noted that “while [the girl] is naked in each of the images, none of these three images contain an exhibition of her genitals or pubic area.” United States v. Piolunek, 72 M.J. 830, 838 (A.F. Ct. Crim. App. 2013).

Because it found that the three images did not meet the definition of contraband child pornography, the CCA concluded that Appellant’s possession of them was constitutionally protected conduct and that a conviction that might be based on that conduct is erroneous. But the CCA affirmed Appellant convictions after concluding that it had “no doubt that the 3 images in question did not materially contribute to the finding of guilt because of the evidence relating to the other 19 images.” Id. at 839. This finding of harmlessness seemed to present a direct challenge to CAAF’s decision in Barberi – also a child pornography case – where Judge Erdmann wrote for the majority and explained that:

An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot be conceived of as harmless.

Barberi, 71 M.J. at 132 (marks and citation omitted). Now the lone dissenting voice in Piolunek, Judge Erdmann tries to salvage something of the reasoning from Barberi by highlighting that CAAF “recognized that this type of constitutional error is reviewable for harmlessness.” Piolunek, diss. op. at 9. See also Barberi, 71 M.J. at 132 (rejecting Barberi’s urging “to set aside the verdict without testing for prejudice.”). But Judge Ryan leads the majority in Piolunek to craft a decision that supersedes Barberi in its entirety, holding that the admission of the three factually deficient images was not constitutional error at all.

Read more »

The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014, and what a story it was.

First, we noticed media reports about the military judge’s ruling, in a post titled: Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)

Then we noted the scheduled oral argument at the Air Force CCA.

The Air Force CCA’s decision provided plenty of details, as the court denied the Government appeal of the dismissal of rape charges that was ordered after the Government refused to produce witness notes. The CCA’s opinion revealed that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

That got the case onto our Top Ten list, but it wasn’t over as the the Air Force JAG certified the case to CAAF.

And then CAAF ordered the Government to re-brief the case, to address “possible controlling or adverse authority.”

Now, in an summary decision issued yesterday, CAAF affirms the military judge and the Air Force court:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08.  On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Jan. 5, 2015)), and the briefs of the parties and amicus curiae, we conclude that the military judge did not abuse his discretion in dismissing all charges and specifications with prejudice following the Government’s refusal to comply with the military judge’s order to produce trial counsel’s witness interview notes for an in camera inspection. “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings,” and “[p]roper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014). Because a judge has broad discretion and a range of choices in crafting a remedy to cure discovery violations and ensure a fair trial, this Court will not reverse so long as his or her decision remains within that range. See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In this case, the military judge’s decision, as affirmed by the Court of Criminal Appeals, was within that range. Accordingly, it is ordered that the certified questions are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

The next meeting of the Judicial Proceedings Panel will occur on April 10, 2015, in Courtroom 20, 6th floor, U.S. District Court for the District of Columbia, 333 Constitution Avenue, NW, Washington, D.C. 20001.

The focus of the meeting will be prevention and response to retaliation against victims of sexual assault crimes. Further details here.

Here is video of the Army’s official statement:

CAAF decided the interlocutory Air Force case of United States v. Buford, __ M.J. __, No. 14-6010/AF (CAAFlog case page) (link to slip op.), on Monday, March 24, 2015. A divided court finds that the military judge was wrong when she concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case. CAAF therefore summarily reverses the military judge’s ruling that suppressed the evidence, and the decision of the Air Force CCA that partially affirmed that ruling.

Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Erdmann dissents, joined by Judge Stucky.

Appellee is pending trial by general court-martial on charges that he committed an indecent act with a minor in violation of Article 120, and six specifications relating to child pornography, in violation of Article 134. On October 5, 2013, the military judge granted a Defense motion to suppress evidence discovered on three electronic devices. The Government appealed, and the AFCCA partially affirmed. The Judge Advocate General of the Air Force then certified one issue to CAAF, and the court granted review of a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

These devices were discovered after Appellee’s wife learned of sexually explicit communications between Appellee and other females, and the wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow.  A1C Marlow was an active duty Air Force Security Forces member, and he searched Facebook and email accounts connected to Appellee, preserving screenshots of sexually explicit matters. He also encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C Marlow was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. In a dense decision, the CCA affirmed that ruling in part. But Judge Ohlson’s majority opinion for CAAF reverses the ruling with a relatively-simple holding:

[T]he fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case.

Slip op. at 7.

Read more »

In what I believe is the first crisis that threatens to shake up the military’s nascent victims’ counsel programs, the Marine Corps Times reports here about an investigation into an allegation that a Marine Corps victims’ legal counsel counseling a victim/client to destroy evidence:

The head of the Marine Corps’ Victims’ Legal Counsel program in Japan is at the center of a legal probe after allegedly instructing a client to destroy documentation relevant to a case.

Maj. Chantell Higgins, a 15-year officer and judge advocate who is serving as regional special victims’ counsel for Legal Services Support Pacific in Okinawa, Japan, is being investigated by the Naval Criminal Investigative Service, according to a Marine official. The official spoke on the condition of anonymity as he was not authorized to discuss the case.

NCIS officials confirmed the existence of an investigation, but said they could not comment on the case as the probe was ongoing.

The investigation is centered on allegations that Higgins instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

Yesterday CAAF granted review in two cases; in both the Government prevailed on interlocutory appeals at the Army CCA:

No. 15-0294/AR. U.S. v. Christopher S. Schloff. CCA 20140708.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:


In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I discussed the Army CCA’s opinion in Schloff in a post titled: Can touching with a stethoscope constitute sexual contact?

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issues:



In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I analyzed the Army CCA’s opinion in Stellato in a post titled: The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”

You can watch the National Security Law Brief Spring Symposium live, at this link:

Reportedly, after the event is over, a recorded video will be available at the above link.

UPDATE–LIVEBLOG (No Man posting now)

I am here at the event and listening to a great presentation by Judge Baker.  He is talking about the role of contractors and how to improve the US use of contractors in combat and related operations.  He refers to the “accountability gap” a little differently then other commentators.  He is talking about resources to investigate and preserve evidence as a part of the accountability regime and the difficulty in a deployed environment.  The other issue he highlights is oversight and transparency and their role in policing the military contractor workforce.

In United States v. Joseph, No. 201300460 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.), a three-judge panel of the NMCCA concludes that the finding of guilty of making a false official statement is defective, and must be reversed, because the members:

excepted the following words from the Specification: “made to Naval Criminal Investigative Service agents . . . an official statement to wit.” In place of the excepted language the members substituted the words, “provided an affirmative response to NCIS that she had been raped by [Sgt MP].”

Slip op. at 4. The false statement was an accusation of rape made by the appellant (a female corporal) after she engaged in sexual intercourse with MP (a male, also a corporal at the time). Shortly after that encounter, the appellant discovered MP engaging in sexual intercourse with her female roommate. Then:

After discovering PFC RC [the roommate -z] and Cpl WP [the male -z] together, the appellant left her room and spent the night in her friend, Cpl EM’s, room. Cpl EM testified that the appellant was clearly upset and confided that she caught Cpl WP having sex with her roommate right after she had sex with him. Cpl EM also testified that the appellant said she “was going to do anything to ruin [Cpl WP’s] life.”

Slip op. at 3. A special court-martial composed of officer members convicted the appellant, contrary to her pleas of not guilty, of violating a lawful general order (wrongfully engaging in sexual activity in the barracks) and making a false official statement, in violation of Articles 92 and 107. The members sentenced the appellant to the jurisdictional maximum punishments of confinement for 12 months, reduction to E-1, forfeiture of $1,010.00 pay per month for 12 months, and a bad-conduct discharge. The convening authority approved only 120 days of the adjudged confinement.

Writing for the panel, Senior Judge Fischer finds that the members’ action excepted the element of an official statement from the false official statement charge, resulting in a finding of not guilty of that offense. As a result, the CCA approves only the finding of guilty of the orders violation, and it reduces the sentence to confinement for 30 days, forfeiture of $1,010.00 pay for one month, and reduction in rate to pay grade E-3 (and no punitive discharge).

In United States v. Russell, No. 2014-11 (A.F. Ct. Crim. App. Mar. 3, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that dismissed (what appears to be) a single specification of wrongful use of ecstasy, finding that the appellee was validly discharged when she received her DD-214 and final pay, and rejecting that Government’s argument that “even if delivered, the [discharge] certificate was invalid because it was contrary to [the appellee’s] squadron commander’s intent.” Slip op. at 3.

Significant military justice events this week: The Judge Advocates Association American Inn of Court will hold an event at the George Washington University Law School Lerner Hall on Wednesday, March 25, 2015, at 6:45 p.m. Details here.

Additionally, American University – Washington College of Law will hold a National Security Law Brief Spring Symposium on Tuesday, March 24, 2015, from 2-6 p.m. The topic is “Guns for Hire: The Legal, Policy, and Ethical Implications of the Growing Reliance upon Military Contractors.” CAAF’s Chief Judge Baker will be the keynote speaker, and CAAFlog contributor Mike “No Man” Navarre will be part of a panel discussion on the history of U.S. military contractors post WWII and their expansion. Details here.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on April 14, 2015 (it will be a Project Outreach argument at Marquette University Law School, Milwaukee, Wisconsin; then, on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, Wisconsin).

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Tuesday, March 24:

At 10 a.m.: United States v. JnBaptiste, No. 20121113

I. Whether the evidence is factually and legally insufficient to support the findings of guilty.
II. Whether the military judge committed prejudicial error when he sustained a prosecution objection to a defense cross-examination question in which the defense was seeking to admit appellant’s statement denying an accusation that he “touched” the victim.

 At 2 p.m.: United States v. Barnes, No. 20120308

Issue: Whether the military judge abused his discretion by giving a military rule of evidence 413 merits instruction to the panel because no evidence had been admitted by the military judge for 413 purposes.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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 Wednesday, March 25, at 10 a.m.:

United States v. Bass

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted the Appellant, contrary to his pleas, of one specification of violating a lawful general regulation, two specifications of wrongful sexual contact, and two specifications of sodomy in violation of Articles 92, 125, and 120, UCMJ. The appellant was found not guilty of seven specifications of sexual acts and contacts in violation of Article 120, UCMJ and one specification of assault consummated by a battery in violation of Article 128, UCMJ. He was sentenced to seven years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and except for the dishonorable discharge, ordered it executed.

I. Whether the military judge erred in instructing the members that consensual sodomy is a lesser-included offense of forcible sodomy.
II. Whether ABE2 Bass was on notice of the alternative crime of consensual sodomy.

Last month the Army Lawyer published an article by Major Jeremy Stephens, Explaining the Extraordinary: Understanding the Writs Process, Army Law., February 2015, at 33 (available here). The article provides a primer on extraordinary relief in the military justice system. Specifically:

This article will discuss the legal underpinnings of extraordinary relief and outline the standard procedures for filing writs by defense counsel, trial counsel, and special victim counsel. It will also compare these procedures to those used when trial counsel file appeals under the procedures of Article 62 of the Uniform Code of Military Justice. Following the conclusion, a pair of appendices is included to assist practitioners in the basic analysis of whether to file a writ or an Article 62 appeal.

Stephens, supra, at 33.

CAAF granted review in two cases yesterday. The first involves an issue specified by the court:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:


Briefs will be filed under Rule 25.

I discussed the CCA’s opinion in this post. The substantial information rule from Johnson addressed the presumption of an Article 10 speedy trial violation established in United States v. Burton, 44 C.M.R. 166 (1971), for pretrial confinement in excess of 90 days. But when an accused was confined for some offenses, and then additional offenses were discovered, the 90-day clock for the additional offenses began when “the Government had in its possession substantial information on which to base the preference of charges.” Johnson, 48 C.M.R. at 601. President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock), and President Bush modified the rule to the current 120-day standard in 1991. Burton was then overruled in United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

In Wilder, the NMCCA held that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial substantial standard – in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), cert. for rev. filed, __ M.J. __ (Feb. 23, 2015) (discussed here). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Because of this, I think Wilder is a great candidate for amicus filings from the Army, Air Force, and Coast Guard appellate divisions.

The second grant from yesterday involves a lesser included offense issue:

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as the recently-decided (but unpublished) United States v. Busch, No. 38530 (A.F. Ct. Crim. App. Feb. 11, 2015) (link to slip op.).

The appellant in Busch pleaded guilty to sexual abuse of a child in violation of Article 120b(c) (2012), in connection with his online communications with a “15-year-old high school student from Florida he never met in person.” Slip op. at 2. Those communication occurred between “on or about 1 February 2013 and 20 May 2013,” slip op. at 1 n.1, raising the issue of the maximum authorized punishment for the offense.

Read more »