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

United States v. Peters, No. 14-0289/AR (CAAFlog case page): Oral argument audio.

United States v. Castillo, No. 14-0457/AR (CAAFlog case page): Oral argument audio.

Last term, in United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. June 13, 2014) (CAAFlog case page), CAAF explained that “the victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” 73 M.J. at 301.

In a published opinion issued last week in United States v. Endsley, __ M.J. __, No. 20130052 (A. Ct. Crim. App. Oct. 17, 2014) (link to slip op.), the Army CCA applies CAAF’s decision in Cimball Sharpton to affirm the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

The CCA highlights the debit nature of the transaction, distinguishing “credit card transactions, [where] an item is obtained via a loan or line of credit offered by the card issuer to the cardholder,” from “a debit card [where one] obtains those goods in exchange for money which results in an immediate deduction from the cardholder’s account.” Slip op. at 4. However, the CCA acknowledges that last term CAAF summarily reversed a similar determination in United States v. Gaskill, No. 20110028 (A. Ct. Crim. App. Aug. 12, 2013) (link to slip op.), rev’d in part, 73 M.J. 207 (C.A.A.F. Jan. 27, 2014). The CCA notes “difficulty reconciling Gaskill with Lubasky or Cimball Sharpton.” Slip op. at 4. Yet the CCA doesn’t acknowledge the distinguishing factor of an agency relationship that allowed CAAF to affirm larceny convictions in Lubasky and Cimball Sharpton while rejecting the larceny conviction in Gaskill. Rather, the CCA affirms in Endsley on the basis that the other soldier’s “money was stolen and those stolen funds were used by appellant to obtain goods.” Slip op. at 5.

But I don’t think the facts of Endsley are so clear-cut, and I think the CCA got it wrong. The other soldier was not the victim of the appellant’s larceny.

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

United States v. Phillips, No. 14-0199/AR (CAAFlog case page): Oral argument audio.

United States v. Morita, No. 14-5007/AF (CAAFlog case page): Oral argument audio.

In a published opinion in United States v. Parker, __ M.J. __, No. 38384 (A.F. Ct. Crim. App. Oct. 15, 2014) (link to slip op.), a three-judge panel of the Air Force CCA rejects the appellant’s multiplicity and sentence appropriateness claims arising from his general court-martial conviction, pursuant to his pleas of guilty before a military judge sitting alone, of rape of a child, aggravated sexual contact with a child, aggravated sexual abuse of a child, two specifications of indecent liberties with a child, two specifications of sodomy with a child, and two specifications of possession of child pornography, in violation of Articles 120, 125, and 134, for which he was sentenced to confinement for life, reduction to E-1, and a dishonorable discharge. Slip op. at 1-2.

The appellant’s offenses were discovered while he was deployed to Qatar and his daughters revealed that he had sexually abused them. But when the appellant’s service data was admitted during the sentencing phase of the court-martial, and then a data sheet was provided to the convening authority by the staff judge advocate during the post-trial processing of the case), the appellant’s overseas service was omitted:

The personal data sheet the Government introduced at trial listed no combat or overseas service by the appellant. The appellant did not object to admission of this document. The staff judge advocate (SJA) attached a similar data sheet with his recommendation, again omitting any mention of combat or overseas service by the appellant. The clemency submissions by the appellant and his defense counsel did not allege any error in the SJA’s characterization of the appellant’s service. Nevertheless, the personal data sheet is plainly erroneous because the appellant was deployed to Qatar at the time his crimes were discovered. In addition, his enlisted performance report for the period ending 7 August 2011 references an earlier 180-day deployment the appellant completed at Al Dhafra Air Base in the United Arab Emirates.

Slip op. at 7. This is a pretty glaring error. However, the CCA finds no material prejudice to the appellant. It then scolds the responsible parties (who remain anonymous), writing:

The Government would be well-advised to find no solace in our resolution of this obvious error. The Government’s neglectful post-trial processing in a significant case involving confinement for life created an issue where none should have existed. Under different facts, it might well have led to an order for new post-trial processing or even sentencing relief by this court. We take this opportunity in this published opinion to remind staff judge advocates of a point we have pressed before:

We caution SJAs to take no comfort from this holding. Because the threshold for showing prejudice is so low, it is the rare case where substantial errors in the SJAR, or post-trial process in general, do not require return of the case for further processing. . . . For that reason alone, it behooves SJAs to pay attention to what they are sending to a convening authority and take the time to get it right the first time. More importantly, however, the integrity of our military justice system demands careful attention in each and every case. While any given court-martial may seem routine to a legal office with a busy docket, rest assured it is not routine to the accused. With rare exception, it will be the single most important event in that military member’s life. Nor is it routine to the members of the accused’s unit, or to the friends, family members, or victims watching carefully to see that justice is served. Slip-shod treatment of the court-martial process, whether at the pre-trial, trial, or post-trial stage, cannot help but undermine faith in the system itself, making it less effective overall as a tool for maintaining military discipline. If a military member’s offenses are deemed serious enough to warrant court-martial, they are serious enough to demand the time needed to carefully and correctly shepherd each aspect of the case to conclusion. . . . Unfortunately, that did not happen here.

United States v. Lavoie, ACM S31453 (recon), unpub. op. at 4 (A.F. Ct. Crim. App. 21 January 2009).

Readers may recall similar criticisms from the Army CCA about a year ago. I discussed those in a post titled: The Army CCA sees “nagging difficulties” and “system failures”

Last week the NMCCA posted an unpublished en banc decision in United States v. Spurling, No. 201400124 (N-M. Ct. Crim. App. Oct. 16, 2014) (link to slip op.). The decision involves a claim of ineffective assistance of counsel based on the failure of the trial defense team (consisting of two Marine lawyers) to seek suppression of pretrial statements made by the appellant, who was questioned by higher-ranking service members without any Article 31(b) rights advisory. The case is particularly interesting because the CCA:

ordered affidavits from both TDC [trial defense counsel], wherein 1stLt B candidly concedes that she failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue” and that she “should have filed a motion to suppress.” Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.” Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

Slip op. at 5-6 (second modification in original). But despite the admissions of the two defense counsel, the CCA finds no error because it concludes that the questioning of Appellant was not conducted in an official law enforcement or disciplinary capacity and so there is no reasonable probability that a motion to suppress would have succeeded. However, this decision splits the panel, with three of the eight judges dissenting. The dissent finds deficient performance and would reverse, and it disagrees with the standard of review applied by the majority.

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This week at SCOTUS: The Court denied cert in McMurrin v. United States, No. 14-262. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking only one case:

This week at CAAF: CAAF will hear oral argument in four cases this week, two on Monday and two on Tuesday.

Monday, October 20, 2014, beginning at 9:30 a.m.:

United States v. Phillips, No. 14-0199/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Case Links:
ACCA opinion (three-judge panel) (deleted from the CCA’s website)
Blog post: Is the “ultimate offense doctrine” making a comeback?
ACCA opinion (recon. en banc), 73 M.J. 572
Blog post: It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine
Blog post: The ultimate offense doctrine returns to CAAF
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

 United States v. Morita, No. 14-5007/AF (CAAFlog case page)

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Case Links:
AFCCA oral argument audio
AFCCA opinion (73 M.J. 548)
Blog post: The AFCCA’s fascinating opinion in Morita
Certified issue: Government’s brief
Certified issue: Defense brief
Granted issue: Defense brief
Granted issue: Government brief
Blog post: Argument preview

Tuesday, October 21, 2014, beginning at 9:30 a.m.:

United States v. Peters, No. 14-0289/AR (CAAFlog case page)

Issue: Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Castillo, No. 14-0457/AR (CAAFlog case page)

Issue: Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

Case Links:
ACCA opinion (summary affirmation)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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 should 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’s website shows no scheduled oral arguments.

Audio of this week’s oral argument at Camp Lejeune in United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page) is available at the following link: Oral argument audio.

Yesterday the Washington Post published a piece written by Rachel E. VanLandingham, who is the Vice President of the National Institute of Military Justice (link to piece). The piece proposes that Congress revise the Uniform Code of Military Justice (UCMJ) to incorporate part of California’s recently-enacted Senate Bill No. 967 (SB-967) (link to text).

I strongly disagree.

SB-967 amended California’s Education Code to require that postsecondary institutions receiving certain state funds adopt a sexual assault policy that includes an “affirmative consent standard” for sexual activity. The bill is sometimes referred to as the “yes means yes” law. However, this is a poor description of SB-967. While the bill requires affirmative consent, it does not require that the consent include the word “yes,” or even that it involve any form of verbal communication.

What SB-967 requires is “affirmative, conscious, and voluntary agreement to engage in sexual activity” by the parties. A head nodded deliberately in agreement is an example of such affirmative consent.

The standard in SB-967 is not significantly different from the standard in military law. Specifically, Article 120 (10 U.S.C. § 920) defines consent as “a freely given agreement to the conduct at issue by a competent person.” But the proposal in the Washington Post fails to acknowledge the UCMJ’s straightforward definition of consent. Rather, it makes the claim that:

Part of the problem is written into the Uniform Code of Military Justice (UCMJ). Right now, in the military, silence may in fact equal consent. According to Article 120, the “totality of the circumstances” must be considered when sexual assault is reported. Silence and lack of resistance equal consent, unless a victim’s silence or passivity can be attributed to intentional acts by the defendant.

This claim is rife with problems, beginning with the fact that the term “totality of the circumstances” is not – and never has been – part of Article 120. But even allowing for poetic license in the quoting of the law, the claim is still inaccurate. Article 120(g)(8)(A) defines consent as “a freely given agreement,” and Article 120(g)(8)(C) adds:

An expression of lack of consent through words or conduct means there is no consent. Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

(Emphasis added). Put differently, military law permits inferring from the circumstances that the sexual activity was non-consensual, not that it was consensual. Consent is not something that can be inferred. In all instances, consent requires a freely given agreement by a competent person.

But more importantly, silence and lack of resistance do not equal consent under the UCMJ. Besides defining consent as a freely given agreement (a phrase that implies an overt act on the part of the other participant), Article 120(g)(8)(A) explains that:

Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent.

(Emphasis added). Any assertion that mere silence and lack of resistance equal consent under the UCMJ is just wrong.

The proposal in the Washington Post also asserts that military law

allows the defense to argue that they reasonably mistook the victim’s silence as consent.

California ensures that such a mistake can never be construed as reasonable: “[l]ack of protest or resistance does not mean consent, nor does silence mean consent.” Period.

Not period, actually. California’s SB-967 proclaims that silence does not mean consent. However, it does not say that silence means no consent. Under both the UCMJ and SB-967, silence is not indisputable proof of consent or of lack of consent. Silence doesn’t mean yes and it doesn’t mean no. Silence is merely one factor to consider when determining the facts of a particular sexual encounter.

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CAAF will hear oral argument in the Army case of United States v. Castillo, No. 14-0457/AR (CAAFlog case page), on Tuesday, October 21, 2014, after it hears oral argument in the Army case of United States v. Peters, No. 14-0289/AR (CAAFlog case page). Like Peters, Castillo presents CAAF with an issue regarding the test for implied bias in a potential member of a court-martial:

Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

Of note, this is one of two cases on CAAF’s docket this term involving service members named Castillo. This case is from the Army. The other case is from the Navy and involves the self-reporting requirement: United States v. Castillo, No. 14-0724/NA (CAAFlog case page).

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of of rape and assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved 23 months of the adjudged two years of confinement, and approved the rest of the sentence. The Army CCA summarily affirmed the conviction.

At trial Appellant’s defense counsel challenged six members for cause based on the fact that the trial counsel (prosecutor) “served with and provided military justice assistance to each of these members.” App. Br. at 3. One of these members was Lieutenant Colonel (LTC) DS. He was also challenged on the additional bases of his “personal experience as a child molestation victim and his civilian sexual assault training.” App. Br. at 4. The military judge granted one of the challenges for a different reason but denied the other five, and the Defense used its preemptory challenge on a different member. That left LTC DS and three other challenged members as part of the court-martial panel. Of those other three, LTC DS was the commander and direct supervisor of two.

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CAAF will hear oral argument in the Army case of United States v. Peters, No. 14-0289/AR (CAAFlog case page), on Tuesday, October 21, 2014, at 9:30 a.m. This case (and a second case to be argued the same day – preview coming tomorrow) presents CAAF with an issue regarding the test for implied bias in a potential member of a court-martial:

Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

Appellant was convicted contrary to his plea of not guilty, by a general court-martial composed of members with enlisted representation, of causing injury by the drunken operation of a vehicle, involuntary manslaughter, and aggravated assault, in violation of Articles 111, 119, and 128. Appellant also pleaded guilty to drunken operation of a vehicle in violation of Article 111. The members sentenced Appellant to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The convening authority reduced the confinement portion of the sentence to nine years and six months.

One of the members who sat as part of Appellant’s court-martial was Lieutenant Colonel (LTC) JC. He was a battalion commander who had ongoing professional relationships with the trial counsel, the special court-martial convening authority, and the Article 32 investigating officer. App. Br. at 2-3. The trial counsel was LTC JC’s brigade judge advocate, providing training and advice on operational law and military justice issues. App. Br. at 3. The special court-martial convening authority (who had forwarded Appellant’s case recommending trial) was LTC JC’s immediate superior. App. Br. at 4. The Article 32 investigating officer was LTC JC’s executive officer. App. Br. at 4.

Based on these facts, Appellant’s counsel made a challenge for cause against LTC JC, asserting bias in the fact that LTC JC “was ‘clearly too connected and too related to this case.'” App. Br. at 5. Appellant’s counsel also noted “LTC JC’s ten-second-hesitation in responding to the question, ‘[d]id you form any opinions, or have you formed any opinions, before coming to this court about who is at fault for that accident?’ This hesitation, the defense argued, was evidence that LTC JC struggled with the distinction between being a commander and being a panel member.” App. Br. at 5 (citation to record omitted). But the military judge denied the challenge and LTC JC sat as a member of the panel.

Appellant raised this challenge again on appeal but the Army CCA affirmed. CAAF then granted review.

This case returns CAAF to the issue of implied bias in a service member selected as part of a court-martial. “Implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citations and marks omitted).  The test for implied bias “is objective, viewed through the eyes of the public, focusing on the appearance of fairness.” Id.

Two years ago, in the certified case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page), CAAF was asked to look at an application of this test after the NMCCA found implied bias and reversed the convictions in a child sexual assault case. CAAF largely avoided that issue by finding actual bias, which is “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” Nash, 71 M.J. at 88. But the court explained that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge,'” Id. (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.2000)).

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CAAF’s website (as well as the AFCCA’s website that is hosted on the same server) looks to be down. With oral arguments scheduled for next week, I’m publishing previews this week that link to briefs hosted on CAAF’s site. If anyone has a burning desire to read one of those briefs before CAAF’s website comes back online, drop me a line at zack@caaflog.com

SCOTUS denied certiorari in McMurrin v. United States after last week’s conference. The court’s docket page for the case is here.

For those interested in the case, I discussed the cert. petition (and reviewed the case history) in this post. Phil discussed the NIMJ amicus brief in this post.

CAAF will hear oral argument in the certified Air Force case of United States v. Morita, No. 14-5007/AF (CAAFlog case page), on Monday, October 20, 2014. The case presents a certified issue and a granted issue, both of which question whether court-martial jurisdiction existed over Appellee who repeatedly forged his own orders to active duty:

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Lieutenant Colonel Morita (who I will identify as Appellee) is a reservist who was convicted of forgery, larceny, and frauds against the United States in connection with his reserve duty orders. He was sentenced to confinement for twelve months, a $75,000 fine with an additional twelve months of confinement as an enforcement mechanism, and a dismissal.

Appellee’s convictions arose from his rather unique reserve situation. The AFCCA’s published opinion in the case explains:

As an IMA [Individual Mobilization Augmentee], the appell[ee] was required each fiscal year to perform 12 annual training days on active duty and 24 paid inactive duty training (IDT) periods.In addition, he received authorization throughout the charged time frame to work 120 military personnel appropriation (MPA) “man-days”5 on active duty per fiscal year, meaning the appell[ee] was authorized to work a total of approximately 144 days per fiscal year. For each fiscal year, the appell[ee] was approved for and received orders covering the MPA man-days in blocks of 120 consecutive days, and he was paid as if he performed military duty on those days. However, because the appell[ee]’s duties generally required more intermittent attention throughout the year, his supervisor allowed him to fulfill those 120 days throughout the year instead of on the actual dates for which he was approved and paid.

United States v. Morita, 73 M.J. 548, __, slip op. at 2 (A.F. Ct. Crim. App. Jan 10, 2014) (link to slip op.). But “from approximately November 2005 to October 2008, the appell[ee] repeatedly forged the signatures of his supervisors and several other officials to create authorizations for him to be placed on travel orders and to receive compensation for travel expenses.” Id., slip op. at 3. An investigation ensued and Appellee was ultimately charged with “forging 510 signatures or sets of initials on more than 100 documents,” as well as larceny and frauds in connection with reimbursements he received for travel claims. Id., slip op. at 4.

Appellee challenged the existence of court-martial jurisdiction throughout the pretrial process, and he moved to dismiss the charges at trial asserting a lack of both personal and subject matter jurisdiction. The Government proved that Appellee was recalled to active duty for trial, providing personal jurisdiction, but it refused to identify whether Appellee was on active duty at the time of each alleged criminal act (necessary to establish subject matter jurisdiction). Instead, the Government asserted that Appellee’s acts were committed in his capacity as a reserve officer and that “it was not necessary for the Government to prove the appell[ee] committed the charged misconduct while on active duty orders or while performing IDTs.” Morita, 73 M.J. at __, slip op. at 6. The military judge agreed with the Government and denied the Defense motion to dismiss.

But the Air Force CCA reversed in part, finding that the record demonstrated that Appellee was on active duty during only certain time periods. In taking this action the CCA denied a Government motion to attach documents that “purportedly help demonstrate what days the appell[ee] was actually in military status during the charged time frame.” Morita, 73 M.J. at __, slip op. at 9. The court determined that those active duty periods were sufficient to confer Article 2(a) subject matter jurisdiction over Appellee’s acts during those periods, even if the documents ordering Appellee to active duty contained forgeries. Id., slip op. at 13-14.

The CCA also rejected the Government’s argument that Article 2(c) subject matter jurisdiction existed for the other time periods (where the record did not prove Appellee was on active duty). The court concluded:

For periods where the appell[ee] was not in Article 2(a), UCMJ, status, there is no evidence the appell[ee] received pay or allowances for his mere act of completing travel-related forms. As far as the record reflects, the appell[ee]’s actions outside periods of Article 2(a), UCMJ, jurisdiction came on days when he was not compensated for his act of completing travel forms. The fact that he later received travel compensation for his fraudulent activity does not alter the fact that he did not receive pay or allowances for any military service on the dates in question.

Morita, 73 M.J. at __, slip op. at 16. And the court rejected the argument that “subject matter jurisdiction would attach over a reservist any time a reservist completes actions incident to his or her duty as a member of a reserve component.” Id.

As a result, the CCA found that the Government proved jurisdiction for only 178 of the 510 forgeries. After finding additional errors involving legal and factual insufficiency, the CCA approved only 159 acts of forgery in violation of Article 123. The court set aside the remainder of the forgery charge, all of the larceny charge (finding in part that it could not determine whether two or more larcenies occurred when jurisdiction existed) and all of the frauds against the United States charge (as multiplicious with the forgery charge). Reassessing the sentence, the court approved only a sentence of a dismissal and three months of confinement. Id., slip op. at 23.

The Government then certified the case, questioning the CCA’s partial rejection of subject matter jurisdiction and its refusal to permit the Government to attach documents to the record. CAAF subsequently granted an issue related to the CCA’s finding of subject matter jurisdiction in any instance.

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Three Ft. Hood soldiers have been charged with trafficking illegal immigrants across the US-Mexican border reports then San Antonio News Express  (via Military.com), here. Charges are pending in US District Court as part of a joint investigation. No word on whether they will eventually face court-martial charges.

We haven’t covered the ongoing mutiny courts-martial in Nigeria the way the GMJR blog has, see recent coverage here. But here amd here are two Nigerian Tribune articles that offer a glimpse of the struggles the Nigerian military is having deploying soldiers to fight Boko Haram terrorists in its own borders.

CAAF will hear oral argument in the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), on Monday, October 20, 2014, at 9:30 a.m. The case will return the ultimate offense doctrine to CAAF for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Appellant was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine to conclude that “neither the stipulation of fact nor the providence inquiry developed or established sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but rather merely establish the offense of breaking restriction in violation of Article 134, UCMJ.” United States v. Phillips, No. 20120585, slip op. at 2, 2013 WL 5402231 (A. Ct. Crim. App. Sep. 23, 2013). That decision caught my attention, and a little research revealed that it wasn’t the first time in recent history that the Army CCA had reversed such a plea. Rather, as I wrote in a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, it was the seventh such case over the prior 15 months.

But the Government sought en banc reconsideration and the full CCA reversed the panel in a published opinion that explained in part that “under the facts of this case, either Article 90, UCMJ, or Article 134, UCMJ (breaking restriction), were viable offenses properly chargeable by the government…” United States v. Phillips, 73 M.J. 572, __, slip op. at 3
(A. Ct. Crim. App. Jan. 31, 2014) (en banc op. on recon.). This prompted me to write a post titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.”

Phillips got me excited because the ultimate offense doctrine really is a military justice wonk’s dream. It’s a part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also the Loch Ness Monster of military appeals; everyone knows it’s there, but its rare appearance is the stuff of legend. To my knowledge, CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

And then CAAF granted review in Phillips and in two trailer cases: United States v. Nemeth, No. 14-0491/AR, grant discussed here), and United States v. Amaya, No. 14-0558/AR (grant discussed here). That got me really excited!

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