This week at SCOTUS: A petition for certiorari (available here) was filed in Andrews v. United States, No. 18-343, on September 13th.

In United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page), CAAF unanimously rejected the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, and found any improper argument by the prosecution in the case to be harmless. The cert petition challenges CAAF’s application of the harmless error test, asserting that “CAAF does not adequately distinguish between the improper arguments of military prosecutors that infringe on an accused’s constitutional rights and those that do not.” Pet. at 3.

In other news, the Solicitor General waived the right to respond to the cert. petition in Larrabee

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

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The Army CCA will hear oral argument in three cases this week:

Wednesday, September 26, 2018, at 10 a.m.:

United States v. Rice, No. 20160695

Issues:
I. DID THE MILITARY JUDGE ERR BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE?

II. DID APPELLANT WAIVE A CLAIM FOR RELIEF FROM THIS COURT THAT THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, WHEN APPELLANT RECEIVED HIS REQUESTED RELIEF FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WHEN THAT COURT DISMISSED APPELLANT’S CONVICTION OF THESE OFFENSES?

III. EVEN IF THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE AND APPELLANT DID NOT WAIVE THE ISSUE, WHAT ERROR EXISTS AT THIS TIME WHICH MATERIALLY PREJUDICES APPELLANT’S SUBSTANTIAL RIGHTS WHEN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HAS DISMISSED APPELLANT’S CONVICTION TO THE SAME POSSESSION OF CHILD PORNOGRAPHY ON DOUBLE JEOPARDY GROUNDS?

Wednesday, September 26, 2018, at 3:45 p.m.:

United States v. Turner, No. 20160131

Issues:
I. WHETHER SPECIALIST TURNER’S CONVICTION FOR OBSTRUCTION OF JUSTICE IS FACTUALLY INSUFFICIENT.

II. WHETHER THE GOVERNMENT IMPERMISSIBLY PRESENTED CONFLICTING THEORIES OF LIABILITY AT THE TRIALS OF SPECIALIST TURNER AND HIS CO-ACCUSED.

Thursday, September 27. 2018, at 2 p.m.:

United States v. Hasan, No. 20130781

Issues:
I. WHETHER APPELLATE COUNSEL SHOULD BE PERMITTED TO REVIEW THE FOLLOWING SEALED APPELLATE EXHIBITS:  APP. EX. 41; APP. EX. 334; APP. EX. 336; APP. EX. 347, ENCLS. 1-3; APP EX. 348; APP EXS. 352-352; APP EX. 389; APP EX. 390; APP EX. 397; APP. EX. 426; AND TRIAL TRANSCRIPT PAGES 2195-2208.  SPECIFICALLY, COUNSEL SHOULD ADDRESS THE POTENTIALLY PRIVILEGED NATURE OF THESE EXHIBITS UNDER MIL. R. EVID. 502.

II. WHETHER APPELLANT SHOULD BE GRANTED THE ASSISTANCE OF LEARNED COUNSEL ON APPEAL. COUNSEL SHOULD BE PREPARED TO ADDRESS THE NECESSITY, AVAILABILITY AND FEASIBILITY OF APPOINTING LEARNED COUNSEL.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

Audio of last week’s project outreach oral arguments is available at the following links:

United States v. Eugene, No. 18-0209/AR (CAAFlog case page): Oral argument audio

United States v. Criswell, No. 18-0091/AR (CAAFlog case page): Oral argument audio

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

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

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

The 6th annual Joint Appellate Advocacy Training is two and a half days of training provided by appellate experts, with breakout sessions for government, defense, and victims counsel. It will occur next week, Tuesday – Thursday, September 18-20, 2018 at Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA.

All interested civilian attorneys, judge advocates and paralegals are invited to attend. Registration is free and will occur at the door. CLE credit may be available.

Here is the current agenda (subject to change) (updated) and here is a map that might help you get there.

The Fourth Amendment generally requires law enforcement obtain a warrant prior to seizing or searching property, and the warrant must be based on probable cause. Any evidence discovered in violation of those requirements may be excluded from trial. Such exclusion is not required by the Fourth Amendment, but rather is a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through [a] deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). That exclusionary rule is codified in the Military Rules of Evidence with the caveats that such exclusion must “result[] in appreciable deterrence,” and “the benefits of such deterrence [must] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

But there are exceptions. One exception – also codified in the Military Rules of Evidence – involves a warrant (or military search authorization) that is somehow flawed. If a warrant is issued by competent authority with a substantial basis for finding probable cause, but is later determined to be invalid, the exclusionary rule does not apply if law enforcement “reasonably and with good faith” relied on the warrant to conduct the search or seizure. Mil. R. Evid. 311(c)(3). This good faith exception to the exclusionary rule recognizes that there is no deterrent effect, and so no justification for the practical cost of excluding evidence of wrongdoing, when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). In other words:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, however, doesn’t seem to involve the officer actually conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if a warrant is invalid and there was no substantial basis to find probable cause to issue it, then the good faith exception does not apply no matter what the officer thought.

It’s a rule that swallows the exception, because an officer might rely on a warrant to conduct a search, and that reliance might be objectively reasonable, but the exception won’d apply if later analysis reveals that there was no basis for finding probable cause to issue the warrant. CAAF addressed this issue in United States v. Carter, and observed that the substantial basis requirement in Mil. R. Evid. 311(c)(3)(B) would – if applied as written – “effectively abolish the good faith exception in military practice.” 54 M.J. 414, 421 (C.A.A.F. 2001). CAAF then decided to interpret the requirement narrowly:

“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.

Carter, 54 M.J. at 422. Put differently, if the officer exercising the warrant objectively believes that there was a substantial basis for finding probable cause to issue the warrant, then the officer acts in good faith and the exception may apply. If, however, the officer knows or should know that there wasn’t a substantial basis to find probable cause, but nevertheless exercises the warrant, then the officer is not acting in good faith and the exception won’t save the evidence from exclusion.

That interpretation was relatively settled until CAAF unsettled it in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page). Hoffmann was accused of committing indecent liberties with children, and a military commander authorized a search of Hoffman’s electronic devices for child pornography based on “an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” 75 M.J. at 123. CAAF rejected that intuitive link as a basis for probable cause and invalidated the authorization (and reversed Hoffmann’s convictions). But CAAF also rejected application of the good faith exception, concluding that:

the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception.

75 M.J. at 128. That conclusion is contrary to the holding from Carter that focused the analysis on what the law enforcement officer knew or should have known about the basis for finding probable cause (and not on whether there actually was a substantial basis for finding probable cause).

CAAF acknowledged its inconsistency the following year, in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), where it summarily concluded that the Army Government Appellate Division failed to establish that the good faith exception applied while observing (in a footnote) that:

We recognize the tension between our discussion of the good-faith doctrine in Hoffmann, 75 M.J. at 127-28, and Carter, 54 M.J. at 419-22. We leave for another day resolution of this tension because we conclude that under either understanding of the good-faith doctrine the Government has not met its burden of establishing this exception to the exclusionary rule in Appellant’s case.

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017).

That day has come:

No. 18-0365/MC. U.S. v. Calvin E. Perkins, Jr. CCA 201700077. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THIS COURT’S HOLDING IN UNITED STATES v. CARTER AS APPLIED BY THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS IN THIS CASE, INSTEAD OF THE PLAIN READING OF MRE 311(c) THIS COURT APPLIED IN UNITED STATES v. HOFFMANN, CONTROLS IN ANALYZING THE APPLICABILITY OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE.

II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF APPELLANT’S HOME.

The NMCCA issued a published decision in Perkins (available here) that concluded:

Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with the rule’s plain language, and Hoffmann’s plain-language approach is therefore inconsistent with Carter. . . .

We conclude that we are still bound by Carter. We are reluctant to assume that the CAAF has tacitly reversed its own precedent. Hoffmann made no mention of Carter and did not purport to change any precedents binding on this court. . . .

United States v. Perkins, __ M.J. __, __, No. 201700077, slip op. at 13-14 (N.M. Ct. Crim. App. Jul. 12, 2018). The CCA then found that the good faith exception applies to the case and affirmed the findings and the sentence, but it observed that its “choice of authorities determines the outcome of this issue” and “under Hoffman, the evidence does not qualify for the exception.” Slip op. at 10-11. Furthermore, it “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R. EVID. 311(c)(3).” Slip op. at 20 (emphasis added).

The JAG’s certification of this issue – that the Government Division won at the CCA – is unusual, but not unprecedented. The Navy JAG previously certified an issue at the request of the defense as recently as 2016. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page).

The long-running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, will be reviewed by CAAF for a third time.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

On appeal, the Navy-Marine Corps reversed Hutchins’ convictions because it found that Hutchins’ military defense counsel was improperly released from the case upon his end of active duty service (decision analyzed here). Hutchins was released from confinement while the Judge Advocate General of the Navy certified the case to CAAF. But CAAF reversed the CCA’s decision in 2011, finding the release of Hutchins’ defense counsel to be harmless (noted here) (link to slip op.), and Hutchins was returned to confinement.

After CAAF’s 2011 decision, the Navy-Marine Corps reviewed Hutchins’ case for a second time, and it affirmed the findings and the sentence (noted here). CAAF then granted review (noted here) and, in 2013 it reversed Hutchins’ convictions because military investigators unlawfully reinitiated communications with Hutchins after he requested an attorney (leading to a confession that was erroneously admitted at trial) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

CAAF authorized a rehearing, a rehearing was ordered, and Hutchins was again convicted.

During Hutchins’ second trial, the prosecution offered evidence of uncharged acts as proof of Hutchins’ plan to commit the charged acts. Some of those uncharged acts, however, were the basis for charges of which Hutchins was found not guilty at his first trial. Hutchins’ defense counsel opposed the prosecution’s tactic at the second trial, arguing that the prior acquittal barred the subsequent use of the acts. The military judge disagreed, and the Navy-Marine Corps CCA affirmed with a lengthy analysis that ultimately relied on Mil. R. Evid. 404(b) to hold that the uncharged acts (including acts implicating the acquittals) were “proof of motive, intent, preparation, plan, and an absence of mistake or accident with regard to the charges against [Hutchins], particularly conspiracy to commit murder and murder.” United States v. Hutchins, No. 200800393, slip op. at 23 (N.M. Ct. Crim. App. Jan. 29, 2018) (link to slip op.).

CAAF will now review that issue:

No. 18-0234/MC. U.S. v. Lawrence G. Hutchins III. CCA 200800393. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OF CONDUCT FOR WHICH APPELLANT HAD BEEN ACQUITTED AT HIS FIRST TRIAL.

Briefs will be filed under Rule 25.

CAAF will hear oral argument in the Army case of United States v. Criswell, No. 18-0091/AR (CAAFlog case page), on Thursday, September 13, 2018, at 11 a.m., at the Fordham University School of Law in New York. A single granted issue challenges the military judge’s ruling that allowed the alleged victim to make an in-court identification of the appellant as her assailant:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134, UCMJ. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was sexually touched and harassed by a man during a party at a convention center at Austin Peay State University in Clarksville, TN. SPC AM is a white female; her assailant was a black man. SPC AM did not know her assailant, but she described him to another soldier shortly after the alleged touching, and the other soldier said, “I probably know who this is.” App. Br. at 5 (quoting record). That led to the identification of Criswell as possibly being the assailant.

The following day SPC AM reported her allegation to military authorities, who showed her a picture of Criswell. SPC AM then said that Criswell was her assailant. But that out-of-court identification was not admited into evidence. Instead, SPC AM identified Criswell as her assailant during trial:

The trial counsel asked SPC AM whether she recognized her assailant in the ccourtroom. (JA 75). Specialist AM pointed to SPC Criswell and said, “I recognize his facial features. I recognize, like, the—it’s weird—like, the shape of his head. I recognize the size of his body. I am able to recognize, compared to when he was close to me.” (JA 76).

App. Br. at 12.

Criswell moved to suppress the identification at trial and again challenged it on appeal before the Army CCA. The military judge allowed the in-court identification and the Army court affirmed that decision. CAAF will now determine if those decisions were right.

Case Links:
• ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Law student amicus in support of appellant
• Law student amicus in support of the appellee (Gov’t Div.)
• Blog post: Argument preview

CAAF will hear oral argument in the Army case of United States v. Eugene, No. 18-0209/AR (CAAFlog case page), on Wednesday, September 12, 2018, at 3 p.m., at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The court granted review of two issues involving consent to a search:

I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

A general court-martial composed of a military judge alone convicted Private First Class (E-3) Eugene, contrary to his pleas of not guilty, of two specifications of attempted viewing of child pornography and four specifications of attempted sexual abuse of a child, all in violation of Article 80, UCMJ. The military judge sentenced Eugene to confinement for 26 months, reduction to E-1, and a dishonorable discharge.

The convictions were based on evidence discovered on Eugene’s cell phone by his wife. Eugene allowed his wife to use his phone, and he left the device with her while he was away conducting field exercises on June 1, 2015. On June 2, 2015, Eugene’s wife used the device and discovered communications between Eugene and other women, some of whom identified themselves as minors. Eugene’s wife then contacted military authorities and authorized them to seize and search the phone. Military investigators conducted a limited, electronic search of the device, but found no evidence. Three days later, on June 5, 2015, they interrogated Eugene and he admitted to exchanging communications with underage girls. At the end of the interrogation, Eugene asked the investigators to return his phone but they did not return it. Instead, military investigators sent the phone for a more detailed electronic search. That search occurred five months later, on November 9, 2015, and yielded incriminating evidence. At no point, however, did the investigators obtain a military search authorization or a civilian search warrant.

Eugene’s defense counsel moved to suppress the fruits of the second search at trial, arguing that the investigators were required to obtain an authorization or warrant. The military judge denied the motion, ruling that Eugene’s wife consented to both the seizure of the phone and its subsequent search, and that Eugene’s request that the phone be returned was at most only a revocation of his wife’s consent to seize the phone. The Army CCA affirmed, finding that Eugene’s request that investigators return his phone was “merely an attempt to regain control over his personal property for personal convenience.” United States v. Eugene, No. 20160483, slip op. at 6 (A. Ct. Crim. App. Feb. 28, 2018). The CCA also found that the inevitable discovery doctrine applies because there was “overwhelming probable cause” and the lead investigator “would have contacted a military magistrate to get a search authorization if he believed he did not have consent.” Id. slip op. at 8.

CAAF then granted review of both of the CCA’s findings. Read more »

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

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The 2018 term begins on October 1, 2018. Nevertheless, this week CAAF will hear the first two oral arguments of next term:

Wednesday, September 12, 2018, at 3 p.m., at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York:

United States v. Eugene, No. 18-0209/AR (CAAFlog case page)

Issues:
I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview (in progress)

Thursday, September 13, 2018, at 11 a.m., at the Fordham University School of Law in New York:

United States v. Criswell, No. 18-0091/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Law student amicus in support of appellant
Law student amicus in support of the appellee (Gov’t Div.)
Blog post: Argument preview (in progress)

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, September 11, 2018, at 12:30 p.m., at Pepperdine University School of Law, in Malibu, CA:

United States v. Beer, No. 20160659

Issues:
I. Whether the military judge abused his discretion by summarily denying the panel’s request for additional evidence.

II. Whether appellant’s conviction of signing a false official statement in violation of Article 107, UCMJ, is legally and factually sufficient.

III. Whether appellant’s sentence is inappropriately severe.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

A kind reader recently brought my attention to an article regarding consent published in the Ohio State Journal of Criminal Law by Rutgers Law Professor Vera Bergelson. That article is entitled The Meaning of Consent, 12 Ohio St. J. Crim. L. 171 (2014).

Professor Bergelson first posits that there are two methodologies for understanding the nature of consent.

The first method, the attitudinal method, argues that “consent means one’s subjective state of mind, ‘attitudinal’ consent.” The Meaning of Consent at 172. As an example of this method, which focuses on the internal thoughts of the victim, the article points to a New York case, People v. Bink, 84 A.D.2d 607 (N.Y. App. Div. 1981). There, a prisoner reported that Bink was planning to sexually assault him the next morning. The putative victim declined the State’s offer of protection, and instead asked that guards watch and catch Bink “in the act.” The encounter occurred, observing guards did not intervene to stop the incident, and Bink was convicted of a sexual offense. His conviction was reversed, however, because, though the victim’s external conduct may not have disclosed it, the victim actually lacked the required attitudinal non-consent because he had “wanted to be assaulted.” K. Ferzan, Clarifying Consent: Peter Westen’s ‘The Logic of Consent’, 25 Law & Phil. 193, 214 (2006).

The second method, the performative method, asserts that consent requires “explicit permission by words or conduct to another’s act.” The Meaning of Consent at 174. As an example of this method, focusing on the perception of the accused as to the victim’s external behavior, Professor Bergelson points to a California case, People v. Burnham, 176 Cal. App. 3d 1134 (Ct. App. 1986). There, in private, a husband beat his wife to force her into having sex with strangers. Later, to those strangers, she feigned consent and appeared a willing participant in sexual conduct. The husband was convicted of spousal rape and the strangers were not charged.

Read more »

CAAF decided the Navy case of United States v. Barry, 78 M.J. __, No. 17-0162/NA (CAAFlog case page) (link to slip op.), on Wednesday, September 5, 2018. A divided court agrees that the appellant’s conviction of sexual assault in violation of Article 120(b) must be reversed, but it disagrees about how and why that reversal should occur. The majority orders the charge and specification dismissed with prejudice, while the dissenters would “instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.” Diss. op. at 16.

Chief Judge Stucky writes for the court, joined by Judge Ohlson and Senior Judge Erdmann (participating because Judge Sparks recused himself). Judge Ryan dissents, joined by Judge Maggs.

CAAF granted review of two issues questioning whether unlawful influence tainted the convening authority’s approval of the findings and sentence:

Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).

Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.

After Senior Chief Special Warfare (E-8) Barry was convicted of sexual assault in violation of Article 120(b), and sentenced to confinement for three years and a dishonorable discharge, the convening authority – Rear Admiral Patrick Lorge (who has since retired) – approved the findings and sentence as adjudged. The NMCCA then remanded the case for a new action because Lorge’s Staff Judge Advocate erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence (based on the SJA’s reading of ALNAV 051/14, which I dissected here).

Lorge then took a closer look at the case, and he began to doubt the findings. He thought about reversing the conviction (a power he had in this case), but Lorge’s SJA advised against it. So Lorge discussed the case with then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (DJAG) of the Navy and with whom Lorge had previously served. Crawford later became the actual Judge Advocate General of the Navy (TJAG) and was promoted to Vice Admiral. According to Lorge, Crawford advised Lorge “that approving the findings and sentence was the appropriate course of action in [Barry]’s case.” Slip op. at 6.

Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at E-7. Then – in an unusual move – Lorge added the following language to his convening authority’s action:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. I encourage the Appellate Court to reconcile the apparently divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66(c)[,] UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.

Slip op. at 2-3 (marks in original). On appeal, the Navy-Marine Corps CCA affirmed the findings and sentence, rejecting four assignments of error. CAAF summarily affirmed on April 27, 2017.

But after CAAF summarily affirmed, Lorge provided an affidavit to Barry’s defense counsel claiming that he didn’t believe the evidence proved Barry’s guilt beyond a reasonable doubt and that he wanted to disapprove the findings and sentence, however he did not do so because of political pressures related to the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure was said to have been Lorge’s discussion of the case with Crawford. Barry then asked CAAF to reconsider its action, and CAAF ordered a post-trial fact-finding hearing to investigate the affidavit. The Chief Trial Judge of the Air Force presided over the hearing and then issued findings last year (discussed here).

CAAF then granted review because, as Chief Judge Stucky’s majority opinion explains in the first sentence:

It is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed should not be approved.

Slip op. at 1 (emphasis added). That is, however, the harshest criticism of Lorge in the decision.

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Significant military justice event this week: The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will hold a public meeting this Friday, September 7, 2018 from 11:00 a.m. to 1:00 p.m., at One Liberty Center, 875 N Randolph Street, Suite 150, Arlington, Virginia 22203. Additional details about the meeting are available here.

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The first oral argument of the 2018 term will occur on September 12, 2018, at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The second will occur the following day, at the Fordham University School of Law in New York.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 5, 2018, at 10 a.m.:

United States v. Myer, No. 20160490

Issues:
I. Whether appellant was denied his Sixth Amendment right to effective assistance of counsel where defense counsel failed to reasonably investigate, present crucial evidence, and cross examine witnesses.

II. Whether Article 133 is unconstitutionally void for vaguesness as it applies to appellant’s conduct.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week. On Wednesday, September 5, 2018, at 10 a.m., the court will hear oral argument in United States v. Hyppolite, No. 39358. On Thursday, September 6, 2018, at 10 a.m., the court will hear oral argument in United States v. Seeto, No. 39247. The argument in Seeto will not be open to the public. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Wednesday, September 6, 2018, at 10 a.m.:

United States v. Hernandez

Issue:
I. Whether the three specifications of the sole charge  were multiplicious where the three actions occurred nearly simultaneously, involved a single subject, and effectuated a single purpose?

The argument will occur in the United States Navy‐Marine Corps Court of Criminal Appeals Courtroom 1254 Charles Morris Street SE, Bldg. 58, Suite 320, Washington Navy Yard, DC 20374.

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

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The first oral argument of the 2018 term will occur on September 12, 2018, at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The second will occur the following day, at the Fordham University School of Law in New York.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, August 30, 2018, at 10 a.m.:

United States v. Navarette, No. 20160786

Issues:
I. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY INTO THE PRESENT MENTAL CAPACITY OF APPELLANT.  SEE RCM 1203(C)(5) AND RCM 706.

II. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY TO ASSESS APPELLANT’S MENTAL RESPONSIBILITY AT THE TIME OF THE OFFENSE. SEE RCM 916(B)(2); RCM 916(K); RCM 1210 (F)(2); AND UNITED STATES V. CAMPBELL, 57 M.J. 134 (2002).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

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

Earlier this month – in an action noted here – SCOTUS remanded the case of Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.

The Court remanded the case for CAAF to consider it in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), in which CAAF reinterpreted the statute of limitations for the offense of rape of an adult.

Yesterday CAAF issued an order agreeing to do that, and more:

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. On further consideration in light of the remand from the Supreme Court of the United States, it is ordered that the above-entitled case is granted review on the following issues:

I. DOES THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, APPLY RETROACTIVELY TO OFFENSES COMMITTED BEFORE ENACTMENT OF THE AMENDMENT BUT FOR WHICH THE THEN EXTANT STATUTE OF LIMITATIONS HAD NOT EXPIRED?

II. CAN APPELLANT SUCCESSFULLY RAISE A STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL?

Briefs will be filed under Rule 25.

CAAF’s 2018 orientation session is scheduled for Tuesday, September 25, 2018, at 9:20 a.m. (link to notice):

To assist new appellate counsel in their practice before the Court, as well as any others who desire to attend, Mr. David Anderson, the Chief Deputy Clerk, and I will be offering an orientation session on Tuesday, September 25, 2018, at 0930 in the courtroom of the U.S. Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC.

Topics will include the Court’s Rules of Practice and Procedure, bar admission, drafting and filing of pleadings, the petition process, electronic filing, the Court’s website, Project Outreach, and a question and answer session.

To assist us with planning and providing for sufficient handouts, I would appreciate it if you would contact my paralegal, Ellen Rambo-Wilson at (202) 761- 7364, with the number attending from your division by Friday, September 21, 2018.