CAAF decided the Marine Corps case of United States v. Captain, __ M.J. __, No. 15-0172/MC (link to slip op.), on Thursday, February 4, 2016. The court finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

Chief Judge Erdmann writes for a unanimous court.

CAAF specified two issues for review:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s defense counsel withheld evidence of the appellant’s good military character and conceded that a punitive discharge would be an appropriate sentence. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge. When taking action on the results of the court-martial, the convening authority disapproved the fine and then wrote:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Slip op. at 9. The convening authority’s action did not explicitly approve the adjudged discharge, but it included a statement that “the punitive discharge will be executed, after final judgment.” Slip op. at 9.

On appeal, the appellant asserted that he suffered ineffective assistance of counsel and that the convening authority’s action did not approve the punitive discharge, prohibiting its execution.

CAAF unanimously rejects both of these claims. For the ineffective assistance of counsel claim, Chief Judge Erdmann does not specifically address whether the appellant’s counsel was deficient, but rather finds that the appellant was not prejudiced because the record reflects that the military judge considered his good military character and that the appellant agreed to concede that a punitive discharge was appropriate. For the convening authority’s action, Chief Judge Erdmann finds it ambiguous because of the lack of explicit approval coupled with the reference to future execution. Because the action is ambiguous, CAAF remands for a new action.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

In a published decision in United States v. Fetrow, __ M.J. __, No. 38631 (A.F. Ct. Crim. App. Jan 21, 2016) (link to slip op.), a three-judge panel of the Air Force CCA interprets Mil. R. Evid. 414 (which permits admission of evidence of uncharged similar crimes in child molestation cases) to find that it was improperly applied by the military judge. As a result, the CCA reverses the appellant’s convictions for sexual assault of his step-daughters, for which he was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Mil. R. Evid. 414 begins:

(a) Permitted Uses. In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant

The rule also provides a definition of child molestation that includes:

(2) “Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and committed with a child; . . .

Mil. R. Evid. 414(d)(2).

The appellant in Fetrow was accused of sexually assaulting his two stepdaughters. One of the stepdaughters recanted prior to trial, however the appellant was convicted of assaulting both girls based in part upon the testimony of the other stepdaughter. In addition to the testimony of the stepdaughter, the military judge allowed the prosecution to introduce the testimony of the appellant’s 17-year-old biological daughter regarding three unrelated events: (1) when she was 3-4 years years old, the appellant put her in a closet while he had sex with a woman; (2) sometime close to the first event, the appellant touched her on the upper thigh; and (3) a time that she saw the appellant’s penis. Ruling on the admissibility of these three unrelated events, the military judge found that:

there was sufficient evidence for the finder of fact to conclude that Appellant committed the alleged conduct and that such conduct constituted “sexual abuse of a child in violation of Article 120 and 120b” based on the versions of those offenses in effect on the day of trial. The military judge also concluded that the first and third incidents would constitute an indecent exposure under the pre-1 October 2007 version of Article 134, and the second incident would constitute an indecent act with a child under the pre-1 October 2007 version of Article 134. He thus found them all to be similar crimes of child molestation admissible under Mil. R. Evid. 414.

Slip op. at 10. The CCA finds this analysis flawed for two reasons. First, the CCA finds that “the offense of ‘sexual abuse of a child’ is not a violation of Article 120” but rather is a violation of Article 120b which is a separate statute. Slip op. at 11. Second, the CCA find that only Article 120 is incorporated into Mil. R. Evid. 414, while Articles 120a, 120b, and 120c are not. Slip op. at 11. The CCA explains:

To interpret the rule’s reference to Article 120 more broadly than written, so that it also incorporates Article 120a, Article 120b, and Article 120c, would result in a counter-intuitive and an unprecedented expansion of what constitutes “similar crime” evidence in child molestation cases. For example, such a reading would convert a non-sexual stalking offense involving a child under Article 120a into a potential “similar crime” under Mil. R. Evid. 414. If the President’s intent was to significantly expand what types of conduct can be considered for admission for these purposes in the military, or to further differentiate the military rule from the federal rule, one would expect that it would be done explicitly and clearly.

Slip op. at 12. Applying this to the facts of the case, the CCA finds that only the second incident was admissible under Mil. R. Evid. 414, concluding that it could constitute abusive sexual contact in violation of Article 120(d). Further, the CCA finds that the improper admission of the other two incidents was prejudicial in part due to the emphasis placed on them by the trial counsel:

In the prosecution’s opening statement, trial counsel highlighted Appellant’s two purported indecent exposures to his biological daughter to apparently suggest that Appellant’s desires and criminal misdeeds pre-dated the allegations in this trial. In fact, approximately a quarter of trial counsel’s opening statement was devoted to the uncharged conduct involving Appellant’s biological daughter. In addition, during closing argument, trial counsel began their argument with the Mil. R. Evid. 414 incidents and argued that these types of incidents progressed to the allegations involving JB and JH. This propensity evidence was clearly a critical piece of the Government’s case.

Slip op. at. 15. The CCA authorizes a rehearing.

The Judicial Proceedings Panel has published a report on Restitution and Compensation for Military Adult Sexual Assault Crimes. The report is available here.

The report makes six recommendations (numbered recommendations 12-17 because they add to the eleven recommendations made in the JPP’s initial report published a year ago):

Recommendation 12: The Department of Defense establish a new, uniform program that provides compensation for unreimbursed out-of-pocket expenses of victims of sexual assault crimes committed by Service members.

Recommendation 13: Congress not amend the Uniform Code of Military Justice to add restitution as an authorized punishment that may be adjudged at courts-martial.

Recommendation 14: The military Services provide recurring training to trial practitioners and victim assistance personnel on the availability and use of restitution in pretrial agreements between the government and the accused.

Recommendation 15: The President enact the Department of Defense’s recently proposed executive order to modify Rule for Courts-Martial 705(d)(3) to provide victims the right to be heard before a convening authority enters into a pretrial agreement.

Recommendation 16: Congress not amend the Uniform Code of Military Justice to direct that the forfeited wages of incarcerated members of the Armed Forces be used to pay compensation to victims of sexual assault crimes committed by Service members.

Recommendation 17: Congress not amend Article 139 of the Uniform Code of Military Justice to include bodily harm among the injuries meriting compensation for redress.

In an interesting decision on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (en banc) (link to slip op.), the Navy-Marine Corps CCA splits 4-4 (one judge did not participate) to grant only a small part of the relief requested by the Government.

Our #4 Military Justice Story of 2014 included discussion of the Marine Corps case of United States v. Howell, in which the appearance of unlawful command influence led to the reversal of a sexual assault conviction. The CCA authorized a rehearing, and the accused was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, the accused was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

The accused complained about his pay, asserting that he was entitled to be paid as an E-6, and the military judge agreed. The military judge then found that the Government’s actions constituted illegal pretrial punishment in violation of Article 13, and he ordered that the accused receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate beginning on the date the original findings and sentence were set aside.

The trial proceeded and the accused was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in approximately 11 months of confinement credit to the accused. The Government then sought extraordinary relief from the CCA, prior to the convening authority taking action in the case.

The CCA’s lead opinion, authored by Judge Marks, finds that the military judge erred only in setting the start date for the credit as the date when the findings were first set aside, and that the credit shouldn’t begin until the date accused was released from confinement. However, Judge Marks concludes that the military judge “did not usurp his judicial power by ruling on SSgt Howell’s complaint of illegal pretrial pay deprivation.” Slip op. at 14.

The dissenting opinion, authored by Senior Judge Brubaker, would reverse the military judge entirely:

I would have found it improper to grant any credit here. Unlike cases relied on by the majority, this case does not implicate punitive actions by command or detention officials – or any other government officials. It presents, instead, a pure pay entitlement question. In my view, the military judge misused Article 13 to litigate and remedy the correctness of an agency’s good faith pay entitlement determination.

Slip op. at 16. Senior Judge Brubaker concludes that “such disputes belong in Congressionally-designated Article III courts.” Slip op. at 17.

The accused filed a writ-appeal petition at CAAF on January 19, 2016.

In an order issued on February 1 (available here), CAAF approves the proposed changes to the rules for amicus briefs (previously discussed here).

The changes take effect on March 1, 2016.

In an opinion released yesterday in DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip op.) (also available here), a three-judge panel of the Army CCA grants the petition of an alleged victim of sexual assault and reverses a military judge’s ruling that ordered her mental health records produced for an in camera review and then disclosed to the defense.

Writing for the panel, Judge Wolfe characterizes the problems in the case as “manifold,” slip op. at 6, and concludes that the military judge committed three errors.

First, the CCA finds that military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under Mil. R. Evid. 513(e). Significantly, Judge Wolfe explains that the military judge ordered production of the records even “prior to the defense filing a motion for the production of the records.” Slip op. at 6. The defense later filed such a motion, but it “did not attempt to meet the procedural requirements set forth in the amended [Mil. R. Evid. 513(e)] and, in fact, explicitly disavowed them as being applicable.” Slip op. at 9.

Next, the CCA faults military judge for concluding that because the records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.” Slip op. at 11. In particular:

[T]he military judge’s finding that because petitioner’s mental health records yielded one (unprivileged) inculpatory document, there was a reasonable likelihood that the remaining records would yield admissible defense information was clearly erroneous.

Slip op. at 13.

Finally, the CCA concludes that the military judge failed (in numerous ways) to apply the procedural requirements of Mil. R. Evid. 513(e), which were revised by Section 537 of the FY15 NDAA (discussed here) and Executive Order 13696 (discussed here).

The CCA refuses the petitioner’s request to declare the records inadmissible, instead merely reversing the military judge’s Mil. R. Evid. 513 ruling while permitting further proceedings to consider the records.

CAAF decided the Air Force case of United States v. Busch, __ M.J. __, No.15-0477/AF (CAAFlog case page), on Friday, January 29, 2016. The court unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.

Chief Judge Erdmann writes for the court, joined by Judge Ohlson and Judge Diaz (of the Fourth Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ryan.

CAAF granted review of a single issue:

At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

The appellant pleaded guilty to multiple offenses, including one specification of sexual abuse of a child in violation of Article 120b(c) (2012) for exposing his genitals and masturbating while the child watched via Skype. The appellant’s misconduct occurred in early 2013; after the 2012 statute’s effective date but before President Obama prescribed maximum punishments for the new offense in Executive Order 13643. The President’s failure to prescribe a maximum punishment forced the military judge to determine the maximum punishment for the appellant’s violation of Article 120b(c) by resorting to Rule for Courts-Martial 1003(c)(1)(B), which requires comparing the charged offense to other offenses listed in the Manual and in the United States Code. If a different offense listed in Part IV of the Manual is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(i) permits using the maximum punishment for that closely related offense. However, if no listed offense is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(ii) requires looking to offenses in the United States Code and the custom of the service.

Applying R.C.M. 1003(c)(1)(B)(i), the military judge concluded that the appellant’s offense of sexual abuse of a child was closely related to the offense of indecent liberty with a child in violation of Article 120(j) (2006), for which the maximum authorized punishment includes confinement for 15 years. The defense, however, argued that the offense of indecent exposure in violation of Article 120(n) (2006), with it’s one-year maximum authorized term of confinement, was more closely related. Despite this objection, the appellant still pleaded guilty. Including the computed 15-year maximum, the appellant faced a total maximum authorized confinement of 22 years and one month, and the military judge sentenced him to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge.

In determining that indecent liberty with a child in violation of Article 120(j) (2006) was closely related to the appellant’s offense of sexual abuse of a child in violation of Article 120b(c) (2012), the military judge made reference to Executive Order 13643. That reference prompted the appellant’s ex post facto claim, as he asserted that the military judge wrongly applied the executive order issued after his commission of the offense. CAAF unanimously rejects this claim.

However, the majority finds that the military judge was wrong to use R.C.M. 1003(c)(1)(B)(i), but finds that application of R.C.M. 1003(c)(1)(B)(ii) reaches the same result. The dissent, however, highlights a significant weakness in the majority’s analysis.

Read more »

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: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week: United States v. Young on Tuesday, February 2, 2016 at 10 a.m., and United States v. Rodriguez on Wednesday, February 3, 2016, at 11 a.m. No additional case information is available on the CCA’s website.

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

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Three new – and particularly noteworthy – grants appear on CAAF’s docket.

First, an Army case challenges the use of charged offenses as admissible propensity evidence under Military Rule of Evidence 413. This issue was our #6 Military Justice Story of 2015:

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Hills is available here.

Next, in another Army case, CAAF specified an issue questioning the proper test for prejudice when evidence is admitted in violation of the statutory protections of Article 31(b):

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT’S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Evans is available here.

Finally, CAAF ordered oral argument on a specified issue in an Air Force case that was certified to CAAF back in October (discussed here). The certified issue challenges the Air Force CCA’s conclusion that the military judge improperly admitted evidence under Mil. R. Evid. 413. The CCA issued its opinion on June 19, 2015, but the JAG did not certify the case until October 7; seemingly past the 60-day time period set for filing a certification in CAAF’s Rule 22(b)(3). However, the Government repeatedly sought reconsideration by the CCA during that time, ostensibly continuing the CCA’s jurisdiction over the case and extending the beginning of the 60-day time period. CAAF will now review that procedural tactic:

No. 16-0053/AF.U.S. v. Shelby L. Williams.CCA 38454.  On consideration of Appellee’s motion to dismiss the case because the certificate of review was not timely filed, and the government’s opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

The date and time of oral argument will be provided to counsel in a separate order.

CAAF’s narrow reading of the jurisdiction of the CCAs was our #5 Military Justice Story of 2015.

[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

This week at SCOTUS: The Court denied the cert petition in Schloff. The Court extended the time for filing a response in Sullivan to February 29.

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

This week at CAAF: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 2, 2016.

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

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

From the Code Committee, here:

This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.

 

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 22, 2016, beginning st 9 a.m., at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Court denied the cert petition in Arness.

A request for an extension of time to file a cert petition was filed in Akbar v. United States. In United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page), CAAF narrowly affirmed Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

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

This week at CAAF: The next scheduled oral argument date at CAAF is February 23, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 21, 2016, at 10 a.m.:

United States v. Crews, No. 20130766

Issues:
I. Whether the military judge erred in instructing the panel that indecent exposure was a lesser included offense to indecent act.
II. Whether the evidence is factually sufficient to sustain the finding of guilty on the specification of Charge I (sexual abuse of a child).
III. Were appellant’s trial defense counsel ineffective by: 1) failing to object to Mrs. KC’s testimony repeating her daughter’s out-of-court statement that appellant had inappropriately touched her (see R. at 148); and 2) during the cross examination of DH, eliciting from DH that he made prior statements that appellant had touched KG, without requesting a limiting instruction from the military judge that such statements could not be considered for their truth?

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week: United States v. Peterman, No. 38705, at 2 p.m. on Friday January 22, 2016. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Audio of today’s oral argument is available at the following link:

United States v. Chin, No. 15-0749/AF (CAAFlog case page): Oral argument audio.

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

United States v. Henning, No. 16-0026/AR (CAAFlog case page): Oral argument audio

United States v. Pease, No. 16-0014/NA (CAAFlog case page): Oral argument audio