That’s the title of this report in the San Diego Union Tribune about the fallout from the public, mass-apprehension of 16 Marines accused of human smuggling that was recently ruled to be unlawful (noted here). As a result of the ruling, “the Marines’ cases will be dealt with administratively, outside the military court system, according to a 1st Marine Division statement.”

The apprehension occurred in July and was big news at the time. Reuters, for example, reported that it “stemmed from a separate investigation of two other Marines arrested earlier this month on human trafficking charges filed by federal prosecutors in San Diego.” The apprehension was captured on video (available here).

The Union Tribune previously reported that a military law enforcement agent testified during an Article 32 preliminary hearing that the Marines apprehended en masse were not accused of actually transporting migrants across the border, but rather were allegedly “part of a conspiracy to transport the immigrants across the county.”

CAAF recently granted review in two Air Force cases.

First:

No. 19-0412/AF. U.S. v. Krishil S. Prasad. CCA 39003. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE AIR FORCE COURT ERRED IN ITS FIRST REVIEW OF APPELLANT’S CASE BY AFFIRMING THE FINDINGS OF GUILT FOR SPECIFICATIONS 1 AND 3 OF CHARGE I WHEN IT FOUND PREJUDICIAL ERROR AS A RESULT OF A HILLS VIOLATION.

Briefs will be filed under Rule 25.

The appellant was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA ultimately issued two opinions in the case. In the first opinion (available here), a three-judge panel of the CCA reversed one of the convictions because the military judge improperly instructed the members that they could use charged offenses for propensity purposes (an error under United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016)). But two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The CCA then remanded the case with a rehearing authorized. The convening authority elected to conduct only a sentence rehearing, after which the case returned to the CCA for further review. Upon further review, a slightly different three-judge panel (consisting of two of the original three judges) declined to reconsider the first decision and affirmed the new sentence, in an opinion available here.

Second:

No. 19-0425/AF. U.S. v. Michael J. Rich. CCA 39224. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE COURT OF CRIMINAL APPEALS ERR WHEN IT FOUND THAT MISTAKE OF FACT AS TO CONSENT IS NOT A SPECIAL DEFENSE “IN ISSUE” FOR THE OFFENSE OF SEXUAL ASSAULT BY INDUCING A BELIEF BY CONCEALMENT THAT APPELLANT WAS SOMEONE ELSE?

II. IF MISTAKE OF FACT WAS NOT A SPECIAL DEFENSE “IN ISSUE,” DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY DENYING THE DEFENSE REQUEST FOR AN INSTRUCTION ON MISTAKE OF FACT?

Briefs will be filed under Rule 25.

The Air Force CCA issued two opinions in the case, both published. First, in 2018, a three-judge panel issued this opinion (78 M.J. 591), reversing the appellant’s conviction of sexual assault by false pretenses after concluding that the military judge erred in failing to instruct the members on the defense of mistake of fact. But the Air Force Appellate Government Division sought reconsideration, and the CCA sitting en banc granted it, vacated the panel’s decision, and then split evenly (4-4) over whether the failure to give the instruction was error, in a second published decision available here (79 M.J. 572). As a result, the CCA en banc affirmed the conviction.

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

United States v. Easterly, No. 19-0398/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Finch, No. 19-0298/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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

This week at CAAF: CAAF will hear oral argument in two cases this week:

Wednesday, December 4, 2019, at 9:30 a.m.:

United States v. Easterly, No. 19-0398/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Finch, No. 19-0298/AR (CAAFlog case page)

Issue: Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).

Case Links:
ACCA opinion (78 M.J. 781)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020, at the University of Texas at Austin.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

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

Audio of the recent oral argument at the Navy-Marine Corps CCA in United States v. Begani, No. 201800082 (reconsideration) is available on the CCA’s website (here) and on our oral argument audio podcast.

Prior coverage:
Oral argument audio
NMCCA opinion (withdrawn)
Blog post: The NMCCA torpedoes Article 2
Blog post: The fundamental flaw in the NMCCA’s decision in Begani
Blog post: NMCCA withdraws opinion, grants reconsideration
Oral argument audio (reconsideration)

CAAF will hear oral argument in the Army case of United States v. Finch, No. 19-0298/AR (CAAFlog case page), on Wednesday, December 4, 2019, after the argument in Easterly. The court granted review of a single issue:

Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).

Specialist (E-4) Finch was convicted by a general court-martial, composed of a military judge alone, of violation of a general regulation, committing lewd acts upon a child, and three specifications of committing a sexual act upon a child, in violation of Articles 92 and 120b. He was sentenced to confinement for six years, reduction to E-1, and a dishonorable discharge.

Finch’s convictions largely hinged on the testimony of his stepdaughter – SH – who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801.

Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the things said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made).

The rule has two parts: 801(d)(1)(B)(i) and (ii). The first part – 801(d)(1)(b)(i) – has long allowed a prior statement to be admitted as non-hearsay when the prior statement predates an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. CAAF has applied the first part on a number of occasions, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). That case also involved a prior statement by an alleged child victim of rape, and a majority of CAAF found that the statement was improperly admitted under Mil. R. Evid. 801(d)(1)(B)(i) because it was made after the alleged improper influence (by the child’s mother). Because the statement did not pre-date the influence, it was not admissible as a prior consistent statement.

The federal rule was amended in 2014 (discussed here) to add the second part: 801(d)(1)(B)(ii). That new subsection makes any prior consistent statements of a witness admissible as non-hearsay so long as the prior statement is otherwise admissible for rehabilitation. The amendment was incorporated into the MCM in 2016 (noted here).

In Finch, the military judge did not state (and the parties at trial seemingly did not argue over) which part of Mil. R. Evid. 801(d)(1)(B) applied to AH’s videotaped interview with CID. Reviewing the military judge’s ruling on appeal, a three-judge panel of the Army CCA found that the interview was admissible under both parts of the rule. In a published decision that includes a lengthy review of the requirements for admission of evidence under both parts of the rule, the CCA first held that the interview was admissible under 801(d)(1)(B)(i):

As the defense theory of the case was that AH had fabricated the claim of sexual assault, this line of attack clearly implied that AH had fabricated new facts after the CID interview.

Accordingly, we conclude that the defense cross-examination of AH opened the door for the government to introduce prior consistent statements to rebut the charge of recent fabrication.

United States v. Finch, 78 M.J. 781, 790 (A. Ct. Crim. App. 2019) (link to slip op.). Then it held that the statement was also admissible under 801(d)(1)(B)(ii):

the defense, at several instances, impeached AH’s testimony as being inconsistent with what she had told Agent JB from CID. . .

The net effect of this cross examination was to attack AH’s credibility by claiming that her testimony was materially different than what she had told Agent JB during an official interview. This attack allowed the government to rehabilitate AH’s credibility under the analysis in Adams and Part (ii) of Mil. R. Evid. 801(d)(1)(B).

Id. at 790-791.

Both of those holdings are raised by the granted issue, but either one of them would allow CAAF to affirm the CCA’s decision and Finch’s convictions.

Read more »

Richard Spencer was – until five days ago – the 76th Secretary of the Navy. He was nominated for the position by President Trump on D-Day, 2017, and quickly confirmed. He was fired this past Sunday by Secretary of Defense Mark Esper – another rapidly-confirmed appointee of President Trump – for loss of trust and confidence in connection with the Gallagher case.

More specifically, as this DoD press statement explains:

Secretary of Defense Mark T. Esper has asked for the resignation of Secretary of the Navy Richard Spencer after losing trust and confidence in him regarding his lack of candor over conversations with the White House involving the handling of Navy SEAL Eddie Gallagher.

After Secretary Esper and Chairman Milley spoke with the Commander in Chief on Friday regarding the case of Gallagher, Secretary Esper learned that Secretary Spencer had previously and privately proposed to the White House – contrary to Spencer’s public position – to restore Gallagher’s rank and allow him to retire with his Trident pin. When recently asked by Secretary Esper, Secretary Spencer confirmed that despite multiple conversations on the Gallagher matter, Secretary Esper was never informed by Secretary Spencer of his private proposal.

The Gallagher case is an unprecedented, unmitigated, and ongoing disaster for the Navy. That, however, doesn’t seem to matter to Spencer.

In a piece published by the Washington Post (alternative link), Spencer disputes the official report of a private deal with the White House and claims, instead, that:

I tried to find a way that would prevent the president from further involvement while trying all avenues to get Gallagher’s file in front of a peer-review board. Why? The Naval Special Warfare community owns the Trident pin, not the secretary of the Navy, not the defense secretary, not even the president. If the review board concluded that Gallagher deserved to keep it, so be it.

. . .

[T]he Navy established a review board to decide the status of Gallagher’s Trident pin. According to long-standing procedure, a group of four senior enlisted SEALs would rule on the question. This was critical: it would be Gallagher’s peers managing their own community. The senior enlisted ranks in our services are the foundation of good order and discipline.

Lack of candor indeed.

CAAF will hear oral argument in the certified Air Force case of United States v. Easterly, No. 19-0398/AF (CAAFlog case page), on Wednesday, December 4, 2019, at 9:30 a.m. The Air Force CCA ordered a sentence rehearing after finding plain error in the failure to instruct the members on the effect of a punitive discharge on a possible disability retirement, and the Judge Advocate General challenged that conclusion with a single issue:

Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

The Air Force Appellate Government Division challenges every aspect of that decision: It argues that there was no error because the record does not support the conclusion that Easterly would have been medically retired but for the punitive discharge; that any error is not plain because plain error under the circumstances requires that the defense actually request an instruction; that the defense had strategic reasons to not want an instruction; that giving an instruction in this case would have unduly interfered with the parties’ presentation of the case; and that any error is harmless because a punitive discharge was virtually certain.

Easterly responds by highlighting how the Government Division’s arguments obliterate the distinction between preserved and forfeited errors, are based on pure speculation of the motives of Easterly’s defense counsel, and misapply the prejudice prong of the plain error test.

Read more »

The Navy Times has published this strongly-worded opinion piece by Sean Gallagher, the brother of Navy Special Operations Chief Edward Gallagher. It begins:

In this partisan environment, people were quick to judge President Donald J. Trump’s reinstatement of anchors to my brother, Special Warfare Operator Chief Edward “Eddie” Gallagher.

Out of the woodwork came former military attorneys, indignant Pentagon officials and your typical Washington establishment types.

Their views were mainly the same. The president’s actions were a moral hazard! What message will it send our troops? What of good order and discipline?

I have one question for these people: Where in the hell were you the past year and a half?

Sean Gallagher then excoriates the Naval Criminal Investigative Service for it’s mishandling of the case, Navy prosecutors for their prosecutorial misconduct (including spying on the defense), and Navy leadership for its lack thereof.

The piece includes a link to this 16-page complaint filed last week with the DoD Inspector General that makes seven specific complaints of “severe misconduct committed by the investigators, prosecutors, and the command before, during, and after the trial.”

Sean Gallagher concludes:

And don’t think for a second the bureaucracy ever admits it got everything wrong. Quite the opposite.

Instead of an apology to our family for the home raid, months of unjust imprisonment and enormous legal fees, the Navy actually rewarded the prosecutors who lost the case.

You heard me right. A team that spied, cheated, slandered and then lost a publicly humiliating case, received Navy and Marine Corps Achievement Medals.

Who, again, is ruining good order and discipline? You dare chide the commander in chief’s attempt to clean up this mess?

To any service member reading this: If it can happen to us, it can happen to you.

The message your brass and bureaucracy is sending you is clear. You are disposable. When it comes to their careers or their political motives, they’ll send you to war and then railroad you, drag you through the mud, and sing songs of sanctimony while you and your family hang.

This week at SCOTUS:  The petition in Hutchins was denied on Nov. 18.

Additionally, on Nov. 21, the Court requested a response to the cert. petition in McDonald, and on Nov. 22 the Army Trial Defense Service filed this amicus brief in support of the petition.

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 at CAAF is on December 3, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020, at the University of Texas at Austin.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

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

Audio of the recent oral argument at the Air Force CCA in United States v. Da Silva, No. 39599, is available on the CCA’s website (here) and on our oral argument audio podcast.

In the wake of President Trump’s recent grants of clemency in military cases, pardoned Army First Lieutenant Clint Lorance appeared on Fox & Friends this morning. Video and a report are available on the Fox News website, here. Among other things, Lorance reacted to yestetrday’s tweet from former Vice President Joe Biden that said that the President’s pardon decision “betrays the rule of law, the values that make our country exceptional & the men and women who wear the uniform honorably.” Shortly before Biden’s tweet, the President tweeted that he would not have granted clemency to Private Manning, whose 35-year sentence was commuted by President Obama.

In other news, CNN reports here on the Supreme Court’s grant in Briggs, with the observation that “this will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.”

Additionally, the San Diego Union Tribune reports here that a military judge ruled that the public, mass apprehension of 16 Marines accused of human smuggling was unlawful command influence. The Union Tribune previously reported on a video of the apprehension, observing that:

On the morning of July 25, as 800 Marines stood in formation at the Camp San Mateo area of Marine Corps Base Camp Pendleton, 24 Marines’ names were called.

Fifteen were ordered to stand in a line in front of the battalion “to be recognized,” according to court filings in the case. The battalion sergeant major stood nearby, carrying a red folder that usually is associated with awards.

But these men weren’t awarded. The regiment sergeant major, Sgt. Major Matthew A. Dorsey pointed to the Marines in front and said, “NCIS, arrest these Marines.”

Three video clips of the incident are available here and also here. The Union Tribune reports that the military judge gave the prosecution “until next week to find a way to remedy what he said was actual and apparent unlawful command influence, or it could be devastating to their case.”

Finally, the Fayetteville Observer reports here on an interview with retired Army Lieutenant Colonel Kris Poppe, who was Major Hasan’s detailed military defense counsel.

This week at SCOTUS:  The Court granted the Solicitor General’s petitions for certiorari in Briggs and Collins (noted here), and consolidated the cases under Briggs. The Court also granted an additional extension of time to file a response to the petition in Richards. Finally, McDonald was distributed for conference on Dec. 6.

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 at CAAF is on December 3, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m.:

United States v. McDonlad, No. 20180387

Issue: Whether the offense of communicating indecent language to a child under Article 134, UCMJ, has been preempted by Article 120b, UCMJ.

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 will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m., at the Navy-Marine Corps CCA courtroom:

United States v. Harpole (CAAFlog case page

Issue: Whether the DuBay Judge’s findings, which support the conclusion that trial defense counsel were not ineffective in failing to file a suppression motion on the basis of Article 31(b) where the victim advocate suspected SN Harpole of sexual assault and did not provide a rights advisement before questioning him, are clearly erroneous

This week at the NMCCA: The Navy-Marine Corps CCA, sitting en banc, will hear oral argument in one case this week, on Wednesday, November 20, 2019, at 9 a.m.:

United States v. Begani, No. 201800082

Issues:
A. Does Article 2 of the Uniform Code of Military Justice violate Appellant’s right to Equal Protection by subjecting him to court-martial as a member of the Fleet Reserve, if retired members of a reserve component are not subject to court-martial, except when receiving hospitalization from an armed force?

B. Are members of the Fleet Reserve “similarly situated” for Equal Protection purposes with retired members of a regular component and retired members of a reserve component?

C. What is the appropriate standard of review for this Court to apply to Article 2 in deciding an Equal Protection challenge?

Prior coverage:
NMCCA opinion (withdrawn)
Blog post: The NMCCA torpedoes Article 2
Blog post: The fundamental flaw in the NMCCA’s decision in Begani
Blog post: NMCCA withdraws opinion, grants reconsideration

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

Today – in an order available here – the Supreme Court granted the Solicitor General’s petitions for certiorari in United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184. The Court consolidated the cases and allotted one hour for oral argument.

I discussed the petition in Briggs in this post. The petition directly challenges CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and indirectly challenges CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018)

I discussed the petition in Collins in this post. The petition involves two CAAF summary decisions: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, No. 19-0345/AF (noted here). Both cases were Briggs trailers.