In a published opinion in United States v. Jackson, __ M.J. __, No. 20120159 (A. Ct. Crim. App. May 18, 2015) (link to slip op.), the Army CCA finds plain error in the testimony of a criminal investigator about the appellant’s confession to sexually assaulting his teenage step-daugher:

The testimony presented SA K-O [the investigator -zds] as taking master’s level courses with CIA agents at the National Center for Credibility Assessment. She testified about her ability to discern verbal and nonverbal signs of deception. Special Agent K-O told the panel that she would move from interview to interrogation mode when she saw sufficient signs of deception. And, when questioning appellant, she did just that after appellant did not answer well in response to shock-absorbing questions. Special Agent K-O testified she told appellant she thought he was lying when he denied the allegations. While describing appellant’s eventual confession, SA K-O stated, “he got this really like faraway look in his eyes like he was reliving it.” Finally, SA KO told the panel that she cuts off denials when a suspect exhibits behavior leading her to believe otherwise.

Cumulatively, this testimony constituted human lie detector testimony.

Slip op. at 8. Human lie detector testimony was the issue in CAAF’s decision in United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan 15, 2014) (CAAFlog case page), and it is improper. In Jackson, the defense asserted that the appellant’s confession to sexually assaulting his step-daughter was false. The Army CCA reverses the appellant’s conviction for two specifications of abusive sexual contact with a child in part because the agent’s testimony went to “a central – if not the central – issue of the case: whether appellant’s confession to touching his stepdaughter was truthful.” Slip op. at 10. The CCA notes that:

While every interrogation and confession is unique, there was nothing special or unusual regarding appellant’s confession. As SA K-O noted, criminal accused often deny, then slowly make admissions, and eventually confess. The government can easily admit such confessions without superfluous testimony from CID agents acting as human lie detectors. The government is not permitted to present human lie detector testimony in rebutting defense attempts to show such confessions are involuntary, coerced, or false.

Slip op. at 12. Then, because the convening authority did not act until 739 days after the court-martial adjourned, the CCA limits “the possible punishment at a rehearing to a punitive discharge, two years confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1,” unless new charges are added during the rehearing. Slip op. at 15-16.

Notably, the appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to violate a lawful order, willful disobedience of a superior commissioned officer, and the two specifications of abusive sexual contact with a child, and he was sentenced to confinement for four years and a dishonorable discharge. While the CCA sets aside the sex offense convictions, it affirms the conspiracy and disobedience convictions.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

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 oral argument schedule shows no scheduled oral arguments.

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

In an article published in the Spring 2015 edition of the Military Law Review (complete issue available here), Colonel Jeremy Weber, USAF, who is currently assigned as a judge on the Air Force Court of Criminal Appeals, observes that “no subject is more critical yet more neglected in appellate practice than standards of review.” Colonel Jeremy Stone Weber, The Abuse of Discretion Standard of Review in Military Justice Appeals, 223 Mil. L. Rev. 41 (Spring 2015) (available here).

Standards of review matter because many appellate issues are close calls. Trial judges are often called upon to rule on issues when more than one “right” answer may be possible; reasonable people in the trial judge’s situation may all agree on the correct legal framework for the issue but reach different conclusions. At the heart of the matter, the standard of review determines what the appellate court is doing when it reviews a trial judge’s actions. Is the appellate court simply determining the right “law” to apply to the issue, or is it making a judgment call about the trial judge’s determination? Does the appellate court consider the issue important enough that it must review the issue with a clean slate or do other interests dictate granting the trial judge some latitude in determining a course of action? Ultimately, then “a standard of review answers two similar, yet different, questions: (1) How ‘wrong’ the lower court has to be before it will be reversed, and (2) What is necessary to overturn the lower court’s decision?”

Weber, supra, at 43-44. The article begins with a brief discussion of four standards: de novo (for questions of law), plain error (for forfeited errors), clearly erroneous (for findings of fact), and abuse of discretion. The article then closely examines that final standard.

Judge Weber makes nine observations:

A. Abuse of Discretion is a Catch-All Phrase that Encompasses Review of Several Distinct Types of Issues

B. Abuse of Discretion Represents a Spectrum of Deference, Not One Fixed Standard

C. Military Appellate Courts Have Not Solved the Mixed Questions Challenge

D. Military Appellate Courts Are Generally Less Deferential Than Their Civilian Counterparts in Employing the Abuse of Discretion Standard

E. The Unique Authority of the Courts of Criminal Appeals Allows for Increased Appellate Scrutiny

F. Government Interlocutory Appeals Involve a Special Class of Abuse of Discretion Review

G. The Abuse of Discretion Standard Does Not Cover Review of Decisions by the Courts of Criminal Appeals

H. Military Judges Can Take Certain Steps to Increase the Amount of Deference Their Rulings Enjoy

I. Abuse of Discretion Review is Inherently Tied to the Issue of Prejudice

Today is the last day of Chief Judge James Baker’s appointment to CAAF.

CAAF judges are appointed by the President, with the advice and consent of the Senate, for 15 year terms. Chief Judge Baker joined the court in September 2000, meaning that today is the last day of his term. See Article 142(b)(2)(B).

The position of chief judge rotates every fives years. Chief Judge Baker assumed the position in 2011 when now-Senior Judge Effron left the court. Judge Erdmann will be the next chief judge.

Despite the expiration of his term, Chief Judge Baker’s service to the court will continue. As of this morning, five cases argued at CAAF during the September 2014 Term of Court are undecided. Article 142(e)(1)(B) allows Chief Judge Baker to continue to serve on the court as a senior judge, and I suspect he will do so in at least one of the undecided cases (the review of the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page)). Chief Judge Baker will also be available to assist the court in future cases as a senior judge.

We wish Chief Judge Baker fair winds, following seas, and the very best for the future.

Gene Fidell reports that yesterday the President nominated CAAF’s commissioner, John E. Sparks, to fill Chief Judge Baker’s position on the court. The White House announcement is available here and provides the following biography of Mr. Sparks:

John E. Sparks is the Commissioner to the Chief Judge of the United States Court of Appeals for the Armed Forces, a position he has held since 2000.  Prior to this, Mr. Sparks was Principal Deputy General Counsel of the Navy from 1999 to 2000 and Special Assistant to the Secretary of Agriculture from 1998 to 1999.  From 1996 to 1998, Mr. Sparks was a Deputy Legal Advisor for the National Security Council.  He served as Military Assistant to the General Counsel at the Department of the Navy from 1994 to 1996 and as a Military Judge at Camp Lejeune, North Carolina from 1991 to 1994.  Mr. Sparks served as military defense counsel, military prosecutor, and Chief Legal Assistance Officer from 1986 to 1991, and held various positions as an infantry officer in the U.S. Marine Corps from 1976 to 1986.  He retired from the U.S. Marine Corps in 1998.  Mr. Sparks received a B.S. from the United States Naval Academy and a J.D. from the University of Connecticut.

Relying on its recent Confrontation Clause decision in United States v. Katso, __ M.J. __ (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), on Monday CAAF summarily affirmed the Army CCA’s decision in Bennett:

No. 14-0658/AR. U.S. v. Corey J. Bennett. CCA 20111107.  On consideration of the granted issue, 74 M.J. 46 (C.A.A.F. 2014), and in view of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), we conclude that the findings of the United States Army Court of Criminal Appeals regarding the expert’s review of Prosecution Exhibit 7 were not clearly erroneous and compel the conclusion that the expert undertook a sufficient degree of independent analysis to render her opinion admissible even if it was based in part on inadmissible information.  Accordingly, it is ordered that the decision of the United States Court of Criminal Appeals is hereby affirmed.*

* OHLSON, Judge (concurring in the result):

While I adhere to my dissenting opinion laid out in the factually distinguishable case of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), I concur in the result because I do not find the Court of Criminal Appeals’ findings on the granted issue to be clearly erroneous.

CAAF’s decision avoids a sub-issue of corroboration of the appellant’s confession to use of marijuana. I mentioned the grant of review in this post.

In a very interesting published opinion in United States v. Bass, __ M.J. __, No. 201400229 (N-M. Ct. Crim. App. May 27, 2015) (link to slip op.), a three judge panel of the NMCCA holds that the military judge erred in instructing the members on the offense of consensual sodomy in violation of Article 125 as a lesser included offense (LIO) of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA). The CCA also holds that the judge did not err in instructing the members that they could use the charged sexual offenses as propensity evidence under Military Rule of Evidence 413 (a similar conclusion was recently reached by the Army CCA, as discussed here). The NMCCA reverses the appellant’s convictions for consensual sodomy, sets aside the sentence, and orders a sentence rehearing.

The appellant was charged with sexual assault of two female sailors, one of whom had a prior consensual relationship with the appellant. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of sexual harassment and wrongful sexual contact involving one of the sailors, and of consensual sodomy (as a LIO of forcible sodomy) involving the other sailor (the one with whom he had the prior relationship). The appellant was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge.

At trial, without objection from the appellant’s defense counsel, the military judge instructed the members that consensual sodomy is a LIO of forcible sodomy:

The lesser included offense of non-forcible sodomy differs from the charged offense of forcible sodomy, in that non-forcible sodomy does not require you to be convinced beyond a reasonable doubt that the sodomy was committed by force and without the consent of the other person. However, in order to find the accused guilty of this lesser included offense, you must find beyond a reasonable doubt both that the physical act of sodomy occurred and that it involved public behavior; an act of prostitution; persons who might be injured, coerced or who were situated in relationships where consent might not easily be refused; or of a unique military interest.

Slip op. at 5 (quoting record). But the NMCCA finds that this instruction was erroneous because a conviction of consensual sodomy requires aggravating factors that remove the sexual activity from the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). CAAF identified those factors in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and it held in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), that determining the existence of such Marcum factors is a matter for the trier of fact.

In Bass, the NMCCA applies Castellano to conclude that the aggravating factors must be stated in the specification:

The CAAF’s binding interpretation that Marcum factors represent additional facts necessary to prove a criminal act of sodomy——as opposed to factors to guide judges in making legal determinations——constrains us to conclude that, as a result, they must be pleaded in a sodomy specification.

Slip op. at 7.

Read more »

In a published opinion in United States v. Jeter, __ M.J. __, No. 38511 (A.F. Ct. Crim. App. Jul. 1, 2015) (link to slip op.), a three judge panel of the AFCCA affirms a conviction for willfully damaging non-military property in violation of Article 109, holding that:

By definition, “damage” encompasses “physical injury to the property,” and we hereby construe “physical injury” to include the rendering of personal property at least temporarily useless for its intended purpose. When reading these concepts together, for purposes of Article 109, UCMJ, we find that “damage” consists of any physical injury to the property, to include any change to the condition of the personal property that renders it, at least temporarily, useless for its intended purpose.

Slip op. at 4. The facts of the case involve a very unhappy marriage, during which the appellant put sugar into the gas tank of his wife’s vehicle:

Suspecting the appellant had put sugar in her vehicle’s gas tank, his wife had her vehicle towed to an auto repair shop, where mechanics confirmed her suspicion. The service manager of the repair shop testified that sugar forms a gel-like substance when mixed with gasoline. If that substance passes through the vehicle’s fuel injectors, they will stick and prevent the car from running. The service manager testified that, at the time he removed the sugar from the vehicle’s tank, there had not yet been any physical injury to the vehicle itself, as the gel-like substance had not moved out of the gas tank. Until the sugar was removed, however, the vehicle could not be driven without causing physical injury to the vehicle. This raises the question whether sugar in the tank amounts to “damage” of the vehicle—nonmilitary property—within the meaning of Article 109, UCMJ. We conclude that it does.

Slip op. at 3-4.

Writing for the CCA, Chief Judge Allred explains that “the appellant’s placing sugar in the vehicle’s gas tank amounted to “damage” within the meaning of Article 109, UCMJ—as it changed the condition of the vehicle rendering it temporarily useless for its intended purpose.” Slip op. at  5.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, Tuesday, July 28, 2015, at 10 a.m.:

United States v. Talar, No. 20130603

Issue: Whether the military judge abused her discretion in admitting prosecution exhibit nine containing testimonial hearsay from a declarant not present at trial in violation of Staff Sergeant Talar’s confrontation rights guaranteed under the Sixth Amendment to the Constitution.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Tuesday, July 28, 2015, at 10 a.m. The issue indicates that the case is a Government appeal of the suppression of the results of a urinalysis based on the accused’s self-report of a substance abuse problem:

United States v. Catano

Issue: Whether the military judge erred when ruling that appellee self-identified his illegal drug use to his first sergeant, thereby protecting all statements he made about his illegal drug use and preventing a positive urinalysis from being used as evidence against him.

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

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

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

In United States v. Blouin, __ M.J. __ (C.A.A.F. Jun. 25, 2015) (CAAFlog case page), CAAF narrowly reversed the appellant’s pleas of guilty to possession of child pornography where the images involved non-nude depictions of minors. Writing for the majority, Judge Erdmann implicitly rejected the holding of United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II), and seemingly held that a lascivious exhibition of the genitals or pubic area must include an unclothed depiction of that area. However, this holding is a little unclear, since CAAF merely found the plea insufficient to sustain the conviction. But in doing so, CAAF reversed the published decision of the Army CCA that had affirmed the plea.

A trailer to Blouin has the potential to provide additional clarity. In United States v. Gould, No. 20120727 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.), the Army CCA found that the appellant’s conviction for production of child pornography was legally sufficient, relying on its own decision in Blouin that CAAF later reversed. CAAF granted review in Gould in January (grant discussed here). But last week, the court summarily remanded the case for further consideration in light of Blouin:

No. 15-0129/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727.  On further consideration of the granted issue, __ M.J.__ (Daily Journal January 21, 2015), and in light of United States v.Blouin, 74 M.J. __ (C.A.A.F. 2015), the decision of the United States Army Court of Criminal Appeals as to Charge II and Specification 1 thereunder and the sentence is reversed.  The decision of that court as to the remaining charge and specification is affirmed.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Blouin.

The CCA’s opinion doesn’t provide much detail about the images at issue in Gould, but it does explain that the appellant was convicted contrary to his plea of not guilty. If the case involves only non-nude images alleged to constitute lascivious exhibition of the genitals or pubic area, Gould should provide further clarity on whether such images are legally sufficient to constitute child pornography.

In a published opinion in United States v. Borden, __ M.J. __, No. 20130493 (Jul. 6, 2015) (link to slip op.), a three-judge panel of the Army CCA holds that:

[W]here the government elects to serve post-trial papers by certified mail, service of such papers is complete upon the day the papers arrive at an accused’s last known-address.

Slip op. at 6. The case is particularly interesting because it involves a soldier whose sentence included a bad-conduct discharge, but whose location was seemingly unknown to military authorities (the record was mailed to his excess leave address, but was never claimed). Because a punitive discharge may not be executed until appellate review is complete, the appellant was presumably still on active duty at the time of the service (though in a no-pay-due status).

The CCA’s conclusion that actual receipt is not necessary to accomplish actual service of the record of trial seems to give the Army a pass for losing track of the appellant’s whereabouts.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 28, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on July 28, 2015.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule (new link) shows no scheduled oral arguments at the Coast Guard CCA.

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

In a published opinion in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.), the Navy-Marine Corps CCA reverses convictions for sexual assault and abusive sexual contact, finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The case involves two female victims: S.K. and B.S. Both were subordinates of the appellant, and both had (separate) sexual encounters with the appellant after drinking significant amounts of alcohol. The encounter with S.K. occurred in December 2012, and the encounter with B.S. occurred in January 2014. Both women had fragmentary memories of the encounters the mornings after. But the morning after her encounter with the appellant, B.S. was awoken by S.K., and:

IT2 B.S. told ITSN S.K. about what had transpired between her and the appellant. ITSN S.K. then relayed to IT2 B.S. what had happened between herself and the appellant the previous month. They decided IT2 B.S. should report she had been assaulted. After IT2 B.S. finished her report to a victim advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged assault as well.

Slip op. at 9. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fraternization in violation of Article 92 and of sexual assault and abusive sexual contact in violation of Article 120 (2012). He was sentenced to confinement for six years and a dishonorable discharge.

Writing for a three-judge panel of the NMCCA, Senior Judge Brubaker finds that the sexual assault and sexual contact convictions are factually insufficient, and the court sets aside those findings of guilty. The court affirms the fraternization convictions and remands the case for a sentence rehearing.

Read more »

CAAF decided the interlocutory Army case of United States v. Schloff, __ M.J. __, No. 15-0294/AR (CAAFlog case page) (link to slip op.), on Thursday, July 16, 2015. A divided court concludes that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact. CAAF affirms the decision of the Army CCA that reversed the contrary conclusion by the trial judge, and the court remands the case for further proceedings.

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

The appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). All five specifications alleged that the appellant committed sexual contact by touching an individual patient’s breasts with a stethoscope. Each specification involved a separate alleged victim. Three specifications were referred to trial, and Appellant was convicted of one.

At trial, the appellant asserted that the specifications failed to state an offense because touching with a stethoscope does not constitute sexual contact. The judge deferred ruling on the issue until after the members found the appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The Government appealed and the Army CCA reversed the trial judge. CAAF then grated review of a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

In today’s 3-2 opinion, CAAF narrowly concludes that the Army court did not err, that there is no ambiguity in the statutory definition of sexual contact, and that the definition includes “those instances where an accused touches a victim with an object.” Slip op. at 3.

Read more »

In a public notice published in the Federal Register today and available here, the JSC announces an amendment to Military Rule of Evidence 803(10) by operation of law:

On December 1, 2013, Federal Rule of Evidence 803(10) was amended to add a notification requirement prior to the offering of a certification proving the absence of a public record. Inaccordance with Military Rule of Evidence 1102(a), unless action to the contrary is taken by the President, amendments to the Federal Rules of Evidence amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments. Therefore, on June 1, 2015, since no action to the contrary was taken by the President, Military Rule of Evidence 803(10) was amended by operation of law.

M.R.E. 803(10) is an exception to the hearsay rule for testimony or a certification about the absence of a public record. The amendment adds a new subparagraph (B) to the Rule that requires that the Government give the defense notice of intent to offer such evidence:

(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if:

(A) The testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection.

Discussion of the change to the federal rule is available at the Federal Evidence Review blog, here.