This week at SCOTUS: Dalmazzi is scheduled for oral argument on January 16, 2018.

A cert. petition was filed in Richards v. United States, No. 17-701. In United States v. Richards, 76 M.J. 365 (C.A.A.F. Jul. 13, 2017) (CAAFlog case page) (link to slip op.), CAAF held that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search.

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

This week at CAAF: The next scheduled oral argument at CAAF is on November 28, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, November 21, 2017, at 10 a.m.:

United States v. Hendrix, No. 20170439

Issues:
[I]. WHETHER A CONVENING AUTHORITY’S DISMISSAL OF CHARGES IS A “SUBTERFUGE” WHEN IT IS MOTIVATED BY A DESIRE TO HONOR THE WISHES OF A SEXUAL ASSAULT VICTIM UNDER DODI 6495.02.

[II]. WHETHER THE MILITARY JUDGE ERRED BY DISMISSING THE CHARGE WITH PREJUDICE.

Note: From the second issue and the counsel for each side, this case is an interlocutory prosecution appeal.

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 at the CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 28, 2017.

Yesterday CAAF granted review in this Army case:

No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. 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 issues:

I. WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR’S CONFESSION TO LAW ENFORCEMENT VIOLATED M.R.E. 801(d)(2)(E).

II. WHETHER ADMISSION OF THE SAME CONFESSION VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

III. WHETHER USE OF THE CONFESSION TO CORROBORATE OTHERWISE UNSUPPORTED ESSENTIAL ELEMENTS IN APPELLANT’S OWN CONFESSION VIOLATED M.R.E. 304(g) AND UNITED STATES v. ADAMS, 74 M.J. 137 (C.A.A.F. 2015).

Briefs will be filed under Rule 25.

There’s no opinion on the CCA’s website, but between the case number and the citation to Mil. R. Evid. 304(g) (restyled as Mil. R. Evid. 304(c) in 2013), the case clearly involves the old corroboration rule.

Confessions – the least reliable form of proof known to the law – were our #10 Military Justice Story of 2015, after CAAF breathed new life into the corroboration requirement with its decision in United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (CAAFlog case page). The Joint Service Committee quickly proposed changing the rule to restore the corroboration requirement to its formerly toothless status, and President Obama promulgated that change just 13 months after CAAF’s decision in Adams.

For comparison, President Obama didn’t promulgate a Part IV of the MCM addressing the 2012 changes to Article 120 until September 16, 2016 – 51 months after the statute’s effective date.

Mil. R. Evid. 801(d)(2)(E) involves statements made by a “co-conspirator during and in furtherance of the conspiracy,” like discussions of the plan, pitches to recruit other conspirators, and confessions to law enforcement.

One of the five seats on CAAF has been vacant since Senior Judge Erdmann’s 15-year term expired on July 31, 2017. President Trump nominated Professor (and Army Reserve Colonel) Gregory Maggs to the seat on September 28, 2017.

Yesterday the Senate Committee on Armed Services held a hearing on three nominations including that of Mr. Maggs. Video and documents are available here.

Yesterday CAAF issued what appears to be a game-changing per curiam decision dismissing a writ-appeal on jurisdictional grounds in United States v. Gray, __ M.J. __, No. 17-0525 (discussed here).

I’ve had a few discussions with some folks and get the sense that there’s a lot of confusion about the underlying legal issue, so this post is a short introduction to extraordinary relief, followed by some more discussion of why the Gray decision appears to be a big deal.

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Today CAAF issued a per curiam decision in United States v. Gray, __ M.J. __, No. 17-0525 (link to slip op.).

The opinion addresses a writ-appeal petition filed by Ronald Gray, who is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Finding no jurisdiction, CAAF dismisses the writ-appeal petition with prejudice. Judge Ohlson is recused and took no part in the decision.

In this post from September I discussed recent developments in the case, including the writ-appeal petition. The petition before CAAF challenges the Army CCA’s denial of a writ of error coram nobis earlier this year. 76 M.J. 579 (link to slip op.).

Coram nobis is “a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). In Denedo, the Supreme Court concluded that a CCA “has jurisdiction to entertain [a] request for a writ of coram nobis” in a court-martial where direct review was over and the conviction was final. 556 U.S. at 914 (emphasis added). This is because: 

respondent’s request for coram nobis is simply a further step in his criminal appeal, [and so] the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.

556 U.S. at 914 (marks and internal citation omitted). Furthermore:

Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment.

556 U.S. at 915 (emphasis added).

But CAAF reaches a different conclusion in Gray:

The threshold question is whether this Court has jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.

Slip op. at 2.

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With a published decision in United States v. Robertson, __ M.J. __, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (link to slip op.), a three-judge panel of the Air Force CCA affirms the appellant’s conviction of one specification of abusive sexual contact in violation of Article 120, for which he was sentenced to reduction to E-3 and a bad-conduct discharge, rejecting assignments of error based on alleged member misconduct affecting deliberations and the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413.

Staff Sergeant (E-5) Robertson was charged with four sexual offenses all related to an encounter with another Staff Sergeant. The members found him not guilty of the three more-serious allegations, and convicted him of abusive sexual contact by touching the alleged victim’s buttocks and breasts without her consent. Slip op. at 6. Robertson testified in his own defense and admitted to the touching, but he claimed it was consensual. Slip op. at 4. The alleged victim, however, testified that all of the contact – including allegations of rape of which Robertson was acquitted – was nonconsensual, that she told him to stop, and that she resisted. Slip op. at 3-4.

The members were instructed that they could use evidence that Robertson committed the three more-serious offenses as proof of Robertson’s “propensity or predisposition to engage in a sexual offense.” Slip op. at 14 (quoting instructions). The defense did not object to the instruction.

After the members convicted Robertson, one of the members told the baliff “that another member had something in his – or her because he did not identify who it was – past that should have been disclosed that swung the vote in favor of conviction.” Slip op. at 6 (quoting military judge’s summary of the baliff’s disclosure). The military judge questioned the member, and the defense moved for a mistrial and also sought to re-open voir dire. The military judge, however, concluded that the general prohibition against inquiring into member deliberations in Mil. R. Evid. 606(b) prevented further inquiry, and denied the defense motion for a mistrial and request for voir dire.

The CCA finds that the military judge’s Mil. R. Evid. 606(b) ruling was correct, and that the erroneous propensity instruction was harmless “under the particular circumstances of this case.” Slip op. at 16.

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Audio of last week’s oral argument before CAAF at Cornell Law School in Ithaca, New York is available at the following link:

United States v. Eppes, No. 17-0364/AF (CAAFlog case page): Oral argument audio.

This week at SCOTUS: The appellant’s merits brief was filed in Dalmazzi on Tuesday. A copy is available here. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:

This week at CAAF: The next scheduled oral argument at CAAF is on November 28, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2017.

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 at the CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 28, 2017.

In January 2012 a video surfaced showing four Marines urinating on the bodies of deceased insurgent fighters in Afghanistan. The following year the investigation and military prosecutions arising from that video were our #6 Military Justice Story of 2013.

When the video appeared, then-Commandant of the Marine Corps, General James Amos, withheld disposition authority over cases associated with the video, exercising a power provided in Rule for Courts-Martial (R.C.M.) 306. Amos assigned that authority to then-Lieutenant General (now General) Thomas Waldhauser, appointing him as the consolidated disposition authority (CDA) for the cases.

But Walshauser was replaced as CDA by Lieutenant General Richard Mills (since retired) in February 2012 after – according to Waldhauser – General Amos told Waldhauser that he wanted the Marines involved in the video “crushed” and kicked out of the Corps (CNN report). General Amos eventually publicly denied making that statement.

The month after replacing Waldhauser with Mills as CDA, General Amos issued White Letter 1-12, referencing “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” Amos then began a tour of Marine Corps installations, giving a presentation that became known as the Heritage Brief. I discussed the Heritage Brief in depth in this post.

Ultimately, a handful of Marines were disciplined in connection with the urination video. Some accepted non-judicial punishment. Others pleaded guilty at special courts-martial with pretrial agreements.

One of the Marines who pleaded guilty at a special court-martial was Staff Sergeant (E-6) Chamblin. On Dec. 19, 2012, Chamblin pleaded guilty to willful dereliction of duty, two orders violations, and wrongfully urinating on deceased enemy combatants. The approved sentence was confinement for 30 days (suspended), forfeiture of $500 pay per month for one month (additional months suspended), and reduction to E-5. Chamblin subsequently left active duty, wrote a book about his experiences, and foiled an alleged attempted murder.

Three days ago a three-judge panel of the Navy-Marine Corps CCA reversed Chamblin’s convictions and dismissed the charges with prejudice (meaning Chamblin cannot be re-tried) based on the appearance of unlawful command influence stemming from the actions of General Amos and his legal advisers. United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.).

Writing for the unanimous panel and applying reasoning from last term’s decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), Judge Fulton concludes:

the burden is on the government to show, beyond a reasonable doubt, that the UCI did not place an intolerable strain upon the public’s perception of the military justice system and that an objective disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. We think that such an observer would share the SJA’s sense that the CMC and lawyers who reported to him “severely and systematically interfered” with this case and would harbor significant doubt about the fairness of the proceeding.

Slip op. at 16. But unlike in Boyce – where a slim majority of CAAF found that reversal with prejudice “would result in an improper windfall” in the absence of individualized prejudice, 76 M.J. at 253 n.10 (and the minority wouldn’t have reversed at all) – the NMCCA finds that:

public confidence in military justice requires dismissal with prejudice in this case. Nearly six years have passed since LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this appellant had a right to a timely trial free from UCI. Col Gruter, who would have recommended that this case be disposed of nonjudicially had evidence not been withheld, has recused himself, and cannot participate further. We find lesser remedies inadequate to the harm. Dismissal of the charges and specifications with prejudice is necessary in this case to ‘“foster[ ] public confidence in the . . . fairness of our system of justice.”’

Slip op. at 17 (emphasis added) (marks in original).

It’s a remarkable conclusion not just because of the result, but because of the analysis that gets the court there.

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CAAF decided the interlocutory Air Force case of United States v. Pugh, __ M.J. __, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.

Judge Sparks writes for the unanimous court.

A general court-martial composed of officer members convicted Major (O-4) Pugh of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

United States v. Pugh, No. 2016-11, slip op. at 2 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.

After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then granted review of a single issue:

Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.

Read more »

In this post from September I discussed the NMCCA’s decision in United States v. Tinsley, No. 201600083 (N-M. Ct. Crim. App. Jul. 6, 2017), in which the CCA affirmed a larceny conviction where the appellant was charged with stealing two dog kennels but the members convicted him of stealing only one kennel. The issue was that the members did not indicate which of the two kennels they found the appellant stole.

A two-judge majority of a three-judge panel of the CCA found the evidence sufficient to sustain a conviction to either kennel, and so affirmed. One judge dissented, however, on the basis that the members’ findings as to the kennel(s) are ambiguous, and so would set aside the portion of the conviction involving the kennel.

Last week CAAF agreed with the dissent:

No. 17-0579/MC. U.S. v. Michael R. Tinsley. CCA 201600083. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and in light of United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed, except for the words, “one kennel,” in Specification 1 of the Charge. The finding of guilty as to the excepted words is set aside and those excepted words are dismissed.

Our #2 Military Justice Story of 2015 was Government Bloopers.

Now the New York Times reports here that:

SUTHERLAND SPRINGS, Tex. — A day after a gunman massacred parishioners in a small Texas church, the Air Force admitted on Monday that it had failed to enter the man’s domestic violence court-martial into a federal database that could have blocked him from buying the rifle he used to kill 26 people.

Could is the wrong word. Should (as discussed here).

It won’t be long before the partisans add this to their list of reasons why commanders should be stripped of their convening authority, but I still blame the lawyers.

Devin Patrick Kelley – identified as the shooter who killed 26 people and wounded many others yesterday in a South Texas church – was reportedly a former member of the Air Force who was convicted by a court-martial in 2012. This AP report, for example, states:

Kelley received a bad conduct discharge from the Air Force for assaulting his spouse and child, and was sentenced to 12 months’ confinement after a 2012 court-martial. Kelley served in Logistics Readiness at Holloman Air Force Base in New Mexico from 2010 until his 2014 discharge, Air Force spokeswoman Ann Stefanek said.

From this information I found the Air Force CCA’s opinion in United States v. Kelley, No. 38267, 2013 CCA LEXIS 1100 (A.F. Ct. Crim. App. Dec. 3, 2013) (link to slip op.), rev. denied, 73 M.J. 257 (C.A.A.F. 2014). The opinion is not on the CCA’s website, but it is a summary disposition affirming the findings of a general court-martial and a sentence of confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

That doesn’t tell us the precise offenses of which Kelley was convicted, but it strongly suggests that Kelley was convicted of an offense for which the maximum authorized punishment exceeds confinement for one year.

Accordingly, 18 U.S.C. § 922 prohibits Kelley from possessing practically any firearm:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, according to this Washington Post story:

Officials described the shooter’s weapon as a Ruger AR-556, an assault-style rifle similar to those used by the military. CNN, citing a law enforcement individual, reported that Kelley purchased the weapon in April 2016 from an Academy Sports & Outdoors store in San Antonio.

(emphasis added).

Update 1 (1135 eastern):
Some media outlets report that Kelley’s court-martial convictions related to domestic violence (this local news report quotes an Air Force spokeswoman as saying he was convicted of domestic violence in 2012 at Holloman AFB in Alamogordo, New Mexico).

If so, then in addition to the prohibition in 18 U.S.C. § 922(g)(1) discussed above, he was alternatively prohibited from possessing a firearm by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment, which applies to anyone:

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

Update 2 (1354 eastern): Thanks to our reader for a link to the opinion now available on the CCA’s website (I’m certain it was not there this morning).

Update 3 (1400 eastern): While the adjudged sentence tracks the maximum at a special court-martial, CBS news reports here that “the Air Force tells CBS News Kelley’s case was a general court martial. . .”

Update 4 (1612 eastern): The New York Times reports here:

“He assaulted his stepson severely enough that he fractured his skill, and he also assaulted his wife, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”

He was sentenced in November of that year to 10 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

(emphasis added). We, of course, know that the last sentence is wrong.

Last week CAAF summarily affirmed the Army CCA’s decision in United States v. Gould, No. 17-0507/AR:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

This was the second trip to CAAF for this case. Way back in 2015 CAAF remanded the case for reconsideration in light of United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). On remand, a two-judge majority of a panel of the CCA applied Blouin to find the the images of a child posing in underwear were not child pornography.

The JAG then certified three issues to CAAF:

I. Whether the Army Court of Criminal Appeals impermissibly exceeded the limitations of its authority on remand from this court by conducting a factual sufficiency review.

II. Whether the Army Court of Criminal Appeals erred by finding Specification 1 of Charge II factually and legally insufficient.

III. Whether nudity is a per se requirement for an image to constitute a “lascivious exhibition of the genitals or pubic area” in 18 U.S.C. § 2256(8)(a).

The first of these tracked a dissenting opinion at the CCA that I characterized as doubly wrong in this post discussing the certification. Dissenting from the CCA’s decision, Judge Wolfe asserted that CAAF’s remand deprived the CCA of its power of factual sufficiency review, and that the appellant had already received one such review (in the CCA’s first decision, that didn’t have Blouin to apply).

CAAF’s summary rejection of Judge Wolfe’s narrow view of the CCA’s power aligns nicely with our #4 Military Justice Story of 2016: Power to the CCAs!

But CAAF’s inability to give an advisory opinion means there is still lingering uncertainty about whether CAAF’s opinion in Blouin – in which the court rejected the application of United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II) – goes so far as to hold that non-nude images can not qualify as lascivious exhibitions of the genitals or pubic area (making an image child pornography).

This week at SCOTUS: The cert. petition in Herrmann was distributed for conference on November 21. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, November 8, 2017, at 4 p.m., at Cornell Law School in Ithaca, New York:

United States v. Eppes, No. 17-0364/AF (CAAFlog case page)

Issues:
I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags.

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Law student amicus brief in support of Appellant
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2017.

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 at the CCA.

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