CAAF decided the Army case of United States v. Adams, __ M.J. __, 14-0495/AR (CAAFlog case page) (link to slip op.), on Monday, April 27, 2015. The court reverses Appellant’s conviction for larceny after concluding that Appellant’s confession, which was “the government’s key piece of evidence,” was improperly admitted because “virtually none of the facts we have previously articulated as essential were corroborated.” Slip op. at 11 (quoting the CCA’s opinion). CAAF reverses the decision of the Army CCA and the findings and sentence, and authorizes a rehearing.

Judge Erdmann writes for the court, joined by Judges Stucky and Ohlson. Chief Judge Baker dissents, joined by Judge Ryan.

CAAF granted review of a single issue in this case:

Whether the Army Court of Criminal Appeals erred in finding that the military judge did not abuse his discretion in admitting the portion of Appellant’s sworn statement regarding the [theft] of cocaine because the Government failed to corroborate, in accordance with Military Rule of Evidence 304(g), the essential fact that appellant took cocaine.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of larceny in violation of Article 121 (as a lesser included offense of the charged offense of robbery in violation of Article 122). He was sentenced to confinement for 165 days, reduction to E-1, and a bad-conduct discharge.

Appellant’s conviction was based on an alleged armed robbery of cocaine from a local drug dealer. Acting on a tip from another soldier identified as an accomplice in the theft (but who did not testify at trial because he was in an unauthorized absence status), Army investigators interrogated Appellant, and Appellant  gave a written statement in which he admitted to stealing cocaine from the drug dealer, using a S&W handgun, near a local WalMart.

The statement given by Appellant was admitted at trial over a Defense objection on corroboration grounds. The corroboration rule – M.R.E. 304(g) (2012) (relocated to M.R.E. 304(c) (2013)) – permits use of an admission or confession of the accused against the accused “only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.” Additionally,

If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.

M.R.E. 304(g) (2012) (relocated to M.R.E. (c)(2) (2013)). In this case the Government did not present corroborating testimony from Appellant’s accomplice or from the victim. Rather, the Government presented the testimony of Army investigators. That testimony directly corroborated the existence of a suspected drug dealer matching Appellant’s description of his alleged victim (who was known to the investigators), the existence of the handgun (as seized from Appellant’s home), and the existence of a local WalMart fitting Appellant’s description of the location of the alleged larceny. However, the testimony did not directly corroborate the existence of any cocaine, the object of the alleged larceny.

Nevertheless, the military judge ruled that much of Appellant’s confession was admissible based on the following corroboration:

The description of the handgun the accused admitted to “waiving [sic] around quick” is a “S&W .40 cal.” This matches the description of [the weapon found in the search]. . . . [T]he Court finds that these items found in the accused’s home four days after the alleged crimes coupled with the testimony regarding the location of a Walmart and Microtel in Evans Mills, New York to be sufficient to meet the standard of the slight corroboration required by the rule and case law.

Slip op. at 6. On review, the Army CCA found that the military judge did not abuse his discretion in making that ruling, and the CCA affirmed the findings and sentence. CAAF then granted review in Adams and in another case also presenting a corroboration issue: United States v. Bennett, No. 14-0658/AR (grant discussed here).

Today’s ruling doesn’t just reverse the Army CCA; it also breathes new life into the corroboration rule.

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In a published decision in United States v. Leblanc, __ M.J. __, No. 38396 (A.F. Ct. Crim. App. Mar. 26, 2015) (en banc) (link to slip op.), the Air Force CCA holds that even though the punitive provisions of a previous version of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships (2 March 2007), did not comply with all of the requirements of Air Force Instruction 33-360, Communications and Information, for issuance of publications enforceable as punitive under Article 92, the appellant (who pleaded guilty to violations of AETCI 36-2909 for his improper relationships with military trainees) “lacks standing to enforce” the dictates of AFI 33-360. Slip op. at 10.

Judge Teller writes for the court. Senior Judge Mitchell, joined by Judge Contoveros, dissents in part, finding that the Air Force “is bound by those requirements [of AFI 33-360] and cannot prosecute an individual under Article 92(1), UCMJ, 10 U.S.C. § 892(1) for violating a regulation that does not comply with those requirements.” Slip op. at 14.

AETCI 36-2909 prohibits, among other things, sexual relationships between Air Force instructors and trainees. The appellant was an instructor who had multiple such relationships, eventually pleading guilty to violating two paragraphs of the AETCI (in addition to other misconduct). However, on appeal the appellant asserted that his pleas should be reversed because the two paragraphs of the AETCI do not include specific language that the failure to obey them is a violation of Article 92, as so they are unenforceable as punitive under the UCMJ. The appellant’s assertion is based on the requirement of AFI 33-360 that each punitive paragraph in a publication contain such specific language:

2.17.1.4. Punitive Language. Most of the recommended language used in publications does not readily put the reader on notice that the publication is punitive in nature. Use language that expresses the mandatory nature of the provisions, such as “will,” “will not,” “shall,” “shall not,” “must,” “must not,” etc. Paragraphs containing mandatory provisions or prohibitions must state that a failure to obey is a violation of Article 92 of the UCMJ. This statement should accompany each mandatory provision or prohibition, or may, if clear, refer to a series of mandatory provisions or prohibitions listed within a specific paragraph.

Slip op. at 6 (quoting AFI 33-360) (emphasis added). Of note, the AFI was updated after Appellant’s court-martial, however it still includes the requirement that the punitive language “must also be included in the specific punitive paragraph(s) (or sections) of the publication.” ¶ 1.7.1.2, AFI 33-360 (Sep. 25, 2013) (available here).

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in four cases this week; three on Tuesday, April 28, 2015, and one on Wednesday, April 29, 2015:

Tuesday, April 28, 2015:

United States v. Murphy, No. 14-0767/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in concluding that ammunition constitutes an explosive for purposes of the sentence aggravator of Articles 108 and 121, UCMJ.

Case Links:
ACCA opinion (73 M.J. 699)
Blog post: The Army CCA finds that ammunition is an explosive
Appellant’s brief
Appellee’s (Government) brief
• Blog post: Argument preview

Followed by:

United States v. Stellato, No. 15-0315/AR (CAAFlog case page)

Issues:
I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.
II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

Case Links:
ACCA opinion (__ M.J. ___)
Blog post: Analysis of ACCA’s opinion
Accused’s brief
Government’s brief
• Blog post: Argument preview

Followed by:

United States v. Schloff, No. 15-0294/AR (CAAFlog case page)

Issue: Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

Case Links:
ACCA opinion
Blog post: Analysis of ACCA’s opinion
Appellant’s brief
Government’s brief
Amicus brief (SVC)
• Blog post: Argument preview

Wednesday, April 29, 2015:

United States v. McIntosh, No. 14-0685/AF (CAAFlog case page)

Issue: Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Appellant’s brief
Government’s brief
• Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Fruday, May 1, 2015, at 10 a.m.:

United States v. Thomas, No. 20130099

Issues:
I. Whether the military judge abused his discretion when he denied the defense motion for the appointment of an expert consultant/witness to assist the defense in developing and presenting evidence that would support the lack of voluntariness and whether appellant made a false confession to the charged sexual assault offenses?
II. Whether the military judge committed prejudicial error when he denied the defense motion to suppress the appellant’s confession due to lack of voluntariness?

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Friday, May 1, 2015, at 10 a.m.:

United States v. Pease

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of three specifications of sexual assault, one specification of abusive sexual contact, and two specifications of fraternization in violation of a lawful general order, violations of Articles 120 and 92, UCMJ. The appellant was found not guilty of one specification of sexual assault. He was sentenced to six years’ confinement and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Whether the military judge erred in failing to give the requested defense instruction on competence?
II. Whether appellant’s constitutional right to due process was violated when he was convicted of violating Article 120 which is unconstitutionally vague?

Believe the victim is a term so commonly uttered in the context of sexual assault prosecutions that it’s approaching a cliche. But “one of the fundamental tenets of our criminal justice system requires that we start by believing, not the accuser, but the accused—a concept more commonly known as the presumption of innocence.” Colonel Daniel J. Higgins and Major Shad R. Kidd, USAF, Start by believing – the Accused, The Reporter Volume 41, Issue 2, at 16 (2014) (available here).

Using psychology as an example, the authors highlight the different between care-giving and truth-seeking:

“The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.” The goal is to develop evidence and work toward truth—whether that is easy for the patient to experience or not. Both roles are important. Both roles are necessary. But they are distinctly different roles.

Higgins & Kidd, supra at 18 (quoting Irving B. Weiner, ed. Handbook of Psychology, 4 (2003)) (emphasis in original). Applying these principles to military justice, the authors conclude that:

Air Force leaders, and those tasked to advise them, should first look to context. If the context is justice (e.g., determining disposition of allegations, trial matters), “starting by believing the victim” should have absolutely no place in their decision-making or advice. If, on the other hand, the context relates to Special Victim Capability (e.g., humanitarian moves, VA services), “starting by believing the victim” may be appropriate.

Higgins & Kidd, supra at 18. An anecdote highlights the danger of conflating criminal justice with :

The pressure felt by the special court-martial convening authority was evinced in the push note that accompanied his referral recommendation. He clearly recognized the weakness of the case (late reporting, no forensic evidence, alleged victim with a very poor character for truthfulness, etc.) and the likelihood of acquittal, but he wrote that the Air Force “owed” her a court-martial. His thinking, as should be obvious to anyone familiar with the basic precepts of criminal law, was completely off-base. The military justice system owes society justice and the accused due process; it does not “owe” an accuser a court-martial. This convening authority’s statement is nonsensical from a military justice perspective but understandable from a services or treatment perspective—the problem is that the note was written in a military justice context.

Higgins & Kidd, supra at 19.

The article concludes with a powerful call to action:

As the guardians of the military justice system, it is our duty to ensure we provide America’s Airmen a fundamentally fair and impartial process. Doing so requires that we ensure all Air Force members are properly trained that in the criminal justice context, we must all start by believing the accused and never vary from that presumption unless and until his or her guilt has been proven by legally competent evidence beyond a reasonable doubt. Permitting any training to undermine these guarantees would constitute a failure of our most fundamental duty as judge advocates.

Higgins & Kidd, supra at 19.

 

CAAF will hear oral argument in the Air Force case of United States v. McIntosh, No. 14-0685/AF (CAAFlog case page), on Wednesday, April 29, 2015, at 9 a.m. The court granted review of a single issue:

Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed members with enlisted representation, of rape of a child, who had attained the age of 12 years but had not attained the age of 16 years on divers occasions, aggravated sexual abuse of a child on divers occasions, assault with the intent to commit rape, and of communicating a threat, in violation of Articles 120 and 134. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The child subject of the allegations was Appellant step-daughter, BH, and the offenses alleged assaults from 2005 to 2010.

On appeal at the AFCCA, Appellant asserted that his military and civilian trial defense counsel were inefficient for various reasons, including that they failed to introduce evidence from sexual assault examinations conducted in 2007 and 2010 that indicated that the alleged victim’s “genitalia was found to be without injury and her hymen was found to be intact.” App. Br. at 3. When an appellant alleges that he suffered from ineffective assistance of counsel (IAC) at trial, he has a heavy burden. He must prove both that his counsel’s performance was deficient and that the deficiency resulted in prejudice. United States v. Green, 68 M.J. 360, 361 (C.A.A.F.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). His counsel’s performance is given great deference, and the prejudice must be significant enough to “undermine confidence in the outcome” of the trial. Strickland, 446 U.S. at 693.

In McIntosh, the Air Force court rejected all of Appellant’s bases for claiming IAC, finding that “there are reasonable explanations for the counsel’s advice and their level of advocacy on the appellant’s behalf was commiserate with that expected of defense counsel.” United States v. McIntosh, No. 37977, slip op. at 19 (A.F. Ct. Crim. App. Jan 17, 2014) (link to slip op.).

CAAF then granted review whether counsel’s failure to introduce evidence from the 2007 and 2010 examinations was IAC.

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dinner-link-for-jaa-websiteThe annual Judge Advocates Association – Judge Advocates Foundation Awards Dinner is scheduled for Tuesday, May 26th at the Army Navy Country Club, Arlington, VA.

The dinner is open to the public. No JAA or ANCC membership is required to attend. Click on the image to the right of visit www.jaa.org for further information.

Congrats to our own Zee, who’s been selected for O-4 in the Marine Corps Reserve!

CAAF will hear oral argument in the interlocutory Army case of United States v. Schloff, No. 15-0294/AR (CAAFlog case page), on Tuesday, April 28, 2015 (after the oral arguments in Murphy and Stellato). The court will consider a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

I discussed the Army CCA’s opinion in this January post titled: Can touching with a stethoscope constitute sexual contact? Appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). Three specifications were referred to trial, and Appellant was convicted of one.

All five specifications alleged that Appellant committed sexual contact by “touching with a stethoscope, the breasts of [an alleged victim] by making a fraudulent representation that the sexual contact served a professional purpose.” Each specification involved a separate alleged victim. The complete charge sheet is provided in the appendix to the Government’s brief.

Note: The charge sheet attached to the Government’s brief is not redacted. It shows Appellant’s full SSN and the rank and whole name of each alleged victim. The Government’s brief also includes unredacted extracts from the trial transcript. This appears to be a wholesale violation of CAAF’s 2010 order regarding electronic filing. 69 M.J. 204-06. See also Notice Regarding Case Information.

The definition of sexual contact is:

2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

Article 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). Appellant asserted at trial that touching with a stethoscope does not meet this definition and so the specifications failed to state an offense. The judge deferred ruling on the issue until after the members found Appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The judge ruled that:

The statutory language providing that “touching may be accomplished by any part of the body” unambiguously limits a sexual contact to a touching accomplished by some part of the accused’s body. Had Congress intended otherwise, they would have added the words “or object” at the end of that sentence. This conclusion is bolstered by the fact that Congress was aware of the distinction between body parts and objects, as reflected in its definition of sexual act in the same statute. That definition of sexual act, contained in Article 120(g)(1), provides that the penetration required for a sexual act may be accomplished “by any part of the body or by any object.”

App. Br. at Appendix A. The Government appealed and the Army CCA reversed, finding that touching with a stethoscope “if done under the requisite circumstances, can constitute a sexual contact.” United States v. Schloff, No. 20140708, slip op. at 5 (A. Ct. Crim. App. Dec. 16, 2014). The CCA’s decision was based on three factors: First, “the statute does not require direct contact.” Slip op. at 4. Second, it is “appropriate and proper to interpret ‘touching’ for purposes of Article 120, UCMJ, consistently with ‘touching’ for purposes of Article 128.” Slip op. at 4. Finally, while the military judge found that the statutory language that “touching may be accomplished by any part of the body” was a limitation on the reach of the statute, the CCA found that this sentence “is unambiguously permissive and not exclusive.” Slip op. at 5.

CAAF then granted review.

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CAAF has published additional details about the court’s 2015 CLE and conference on May 19-20, 2015, at the Georgetown University Law Center 600 New Jersey Avenue, NW, Washington, DC.

The list of speakers is available here.

The registration form is available here. The conference fee is $100.

CAAF will hear oral argument in the interlocutory Army case of United States v. Stellato, No. 15-0315/AR (CAAFlog case page), on Tuesday, April 28, 2015. In a published decision issued in November (discussed here), a three-judge panel of the Army CCA granted a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. The CCA found that “the military judge abused his discretion by dismissing the charges and specifications with prejudice,” and that “he clearly misjudged the scope and magnitude of the discovery issues in this case.” Slip op. at  21. The CCA also found that “the trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.” Slip op. at 17.

CAAF subsequently granted the accused’s petition for review of two issues:

I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.

II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

The accused, a mobilized reservist, is charged with various acts of alleged sexual molestation of his biological daughter, MS, from 2007 through 2009, when MS was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials assembled and held by a women who is the wife of the accused and the alleged victim’s mother. According to the military judge’s findings (that were adopted by the Army CCA), the materials were:

what witnesses described as a “box” of evidence relating to this case. Mrs. MS [the mother] had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home. Mrs. MS and MS [the child] live in Morgantown, West Virginia.

Slip op. at 3. Among those materials was a note documenting a recantation by the alleged victim. Slip op. at 7. The military judge also found that Government counsel became aware of the materials in February or March 2013, when counsel visited the family in West Virginia. But Government agents did not secure the materials. Charges were preferred in March 2013, the accused was arraigned in September 2013, and trial was scheduled. But the defense requested multiple continuances for discovery-related issues. One such request was litigated on March 17, 2014, and was requested for three reasons:

First, the government had informed the defense that Mrs. MS had at least two journals that she kept with details of the case that she was using to prepare for trial that had not been and would not be provided to the defense because Mrs. MS did not bring them to trial but brought only selected scanned pages. Mrs. MS confirmed that no one ever asked her or told her to bring the journals or the “box” or binder of evidence to Fort Bliss.

Second, the government had just provided in the R.C.M. 802 conference, witnessed by the military judge, emails between the accused and Mrs. MS in which the accused made statements directly contradicting the allegations as well as Mrs. MS’s statements that the accused had never denied the allegations. The defense had specifically requested these emails in its initial discovery request on 22 March 2013. Mrs. MS stated that she had previously provided the emails, but later acknowledged that she had inadvertently not provided the emails to the government prior to March 2014.

Third, the government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government. The military judge granted the defense’s request for continuance, and the trial was docketed for a fourth time for 8 July 2014.

Slip op. at 7. Ultimately, the materials (or, at least, what was left of them in the spring of 2014) were disclosed to the defense. However, the military judge dismissed the case with prejudice, concluding that because of:

the nature, magnitude, and consistency of the discovery violations in this case, this is the very rare case where dismissal is an appropriate remedy.” Further, due to the “material prejudice and denial of due process already inflicted on the Accused,” to include the delayed disclosure of certain pieces of evidence, the loss of a defense witness due to his untimely demise, and the length of time from preferral to the scheduled court-martial, “the only appropriate remedy left in this case is dismissal with prejudice.”

Gov’t Br. at 14. The Government appealed and the CCA reversed.

The CCA’s opinion found that Government counsel complied with the discovery obligations, finding error in the military judge’s conclusion to the contrary.

We conclude that the military judge relied on an erroneous view of the law. The trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.

Slip op. at 17. The court also made a crucial distinction between Government agents and cooperating witnesses:

[T]he record does not reflect, and the military judge did not find, that Mrs. MS or MS were effectively government agents. In our view, nothing in this case gives us reason to merge the prosecuting sovereign United States and a cooperating witness and treat the two as one. Given the facts, MS and Mrs. MS cooperated with the trial counsel, but did not become agents of the trial counsel.

Thus, the “box,” and the evidence within it such as the note documenting the recantation and the emails, were outside the possession and knowledge of the government. The trial counsel did not have a duty to search a “box” belonging to third party cooperating witnesses for exculpatory information. The military judge abused his discretion to the extent that he believed that the trial counsel had such a duty.

Slip op. at 19 (emphases added). Finally, the court found that “without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.” Slip op. at 22.

CAAF’s will now review whether there was a discovery violation and, if so, how severe that violation must be before dismissal with prejudice is an appropriate remedy.

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Sen. Clair McCaskill added and amendment to the long stalled human trafficking bill that requires. Coverage here (St. Louis Post Dispatch). The predecessor of the amendment, the Military Sex Offender Reporting Act of 2015, requires SecDef to report qualifying offenders from courts martial to DOJ for inclusion on he National Sex Offender Registry. 

More coverage of the PVT Jeremiah Hill court martial here and here (military.com), focusing on the accused’s friends’ testimony about the night of the murser outside JBLM.  The trial continues today. 

CAAF’s daily journal for yesterday includes the following entry:

No. 15-0178/MC. U.S. v. Marco A. Hernandez. CCA 201300313.  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 BY NOT STAYING OR DISMISSING THE PROCEEDINGS IN LIGHT OF THE IMPROPER PANEL SELECTION BY THE CONVENING AUTHORITY.

No briefs will be filed under Rule 25.*

* Judge Ryan has recused herself in this case.

The NMCCA’s opinion in the case is available here. The CCA rejected the appellant assertion that the convening authority improperly excluded members on the basis of rank. CAAF is considering a similar issue (though one based on different facts) in United States v. Ward, No. 15-0059/NA (CAAFlog case page).

I have no information about why Judge Ryan recused herself from this case.

In United States v. Ward, No. 15-0059/NA (CAAFlog case page), CAAF is considering is the following issue:

The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

In its opinion in Ward, issued on July 31, 2104 (available here), the NMCCA found that members were excluded on the basis of rank (an improper basis for exclusion), but the court conducted a detailed analysis and concluded that the exclusion was harmless. The court reached the same conclusion (employing the same analysis) in United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.).

Yet in an opinion issued yesterday, the CCA reverses a conviction for aggravated sexual assault after concluding that the Government failed to meet its burden to prove that the exact same error, cause by the same member selection policy, was harmless:

We find the appellant has established that the instruction improperly excluded potential members from the selection process on the basis of rank. Thus we turn to the Government to determine if it has met its burden to show lack of harm——and find it has not. The Government has provided no evidence upon which this court can conclude the CA properly considered the Article 25, UCMJ, factors in selecting the members for the court-martial, or that he knew he was free to select members not on the list provided by his staff judge advocate (SJA).

In its answer, the Government notes that the COMNAVAIRLANT instruction specifically lists the requirements of Article 25d(2), UCMJ. While that is certainly a good thing, it sheds no light on what advice the SJA provided the CA, or on the selection process followed by the CA himself. We therefore find the Government has failed to meet its burden of showing the improper exclusion of potential members did not materially prejudice the appellant.

United States v. Thompson, No. 201400072, slip op. at 9 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.) (citations omitted).

I think this a mighty curious result, particularly since the Government counsel for Thompson was also counsel for the Government in Ward and Lesley (so he certainly knew how to win this issue), and the three-judge panel that decided Thompson was composed of the same three appellate military judges who decided Ward, two of whom also participated in the decision in Lesley.

However, I can’t help but I note that the CCA’s opinion in Thompson was issued precisely five weeks after CAAF heard oral argument in Ward.

CAAF will hear oral argument in the Army case of United States v. Murphy, No. 14-0767/AR (CAAFlog case page), on Tuesday, April 28, 2015. The court will consider the published decision of the Army CCA that held that ammunition is an explosive within the meaning of R.C.M. 103(11), with the following granted issue:

Whether the Army Court of Criminal Appeals erred in concluding that ammunition constitutes an explosive for purposes of the sentence aggravator of Articles 108 and 121, UCMJ.

Appellant pleaded guilty to offenses that included larceny and conspiracy to sell military 5.56 mm ammunition. Wrongful sale of military property (in violation of Article 108) and larceny (in violation of Article 121) have a range of maximum punishments depending on the existence of potential aggravating factors. One such factor is whether the object of the sale or larceny is an explosive. The charges against Appellant alleged that the 5.56 mm ammunition was an explosive, Appellant accepted that the ammunition was an explosive, and the Army CCA affirmed that conclusion in a published and en banc, but non-unanimous, opinion (that I analyzed in this post).

That decision created the possibility of an absurd result. The maximum punishment for a violation of Article 108 or 121 involving a military explosive includes a whopping 10 years of confinement. The CCA’s decision extended that maximum to an offense involving just a single round of ammunition. But the same maximum also applies for offenses involving any military property of a value of more than $500, and Appellant’s criminal activities easily exceeded that value as the included an incident when:

Appellant then took 1800 rounds of loose 5.56mm ammunition from the truck in his company area, placed them in his backpack, and drove them to SPC Westfall’s house for the sale .. (JA 36). Despite its fair market value of approximately $1024, SPC Westfall and appellant sold the ammunition to a buyer for two hundred dollars.

Gov’t Br. at 3. Yet for reasons unknown, it appears that the Government elected to charge Appellant with offenses involving explosives rather than offenses involving military property of a value of more than $500. Specifically:

Appellant pleaded guilty to and was convicted of two specifications of conspiracy to sell “5.56 mm ammunition, explosives, military property of the United States” and two specifications of stealing that ammunition, again described as “explosives.” The difference in the two conspiracy convictions is that the overt acts alleged to accomplish the first conspiracy concern the theft and sale of the 1800 rounds of loose 5.56 mm ammunition whereas the overt acts for the subsequent conspiracy concern the theft and transport of the 3200 rounds of linked 5.56 mm ammunition.

United States v. Murphy, 73 M.J. 699, 700 (A.Ct.Crim.App. May 30, 2014). Because the Government did not allege a value, if the ammunition is not an explosive then the maximum authorized punishments are much lower: one year for each conspiracy specification, and just six months for each Article 121 specification (assuming that CAAF does not imply military nature to the ammunition from the conspiracy specification; and I expect that it won’t).

And so Appellant’s case presents CAAF with something of a functional paradox. If CAAF reverses the CCA and holds that ammunition is not an explosive, then it creates the possibility of an absurd result in this case by granting a windfall to Appellant. However, if CAAF affirms the CCA, then it permits an absurd result in a future case involving just a single round of ammunition. These factors risk Murphy being a tough case that makes bad law.

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A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood.  Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him.  Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions.  Hill faces life in prison without the possibility of parole if he is convicted of the murder.  Full report from the Tacoma News Tribune here.

The FY 2016 NDAA markup continues the trend of military justice “fixes.”  Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault.  The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces.  The markup schedule is here.