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

United States v. Coleman, No. 19-0087/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page): Oral argument audio (wma) (mp3)

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

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

United States v. English, No. 19-0050/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Navarette, No. 19-0066/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

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

Audio of the oral argument in Unites States v. Sager, No. 201400356, on May 1, 2019, at the Navy-Marine Corps CCA is available on the CCA’s website here and also on our oral argument audio podcast.

CAAF decided the Army case of United States v. Harris, __ M.J. __, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
ACCA opinion (78 M.J. 521)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

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 will hear oral argument infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

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

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

Issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

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

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

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

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

Earlier this year, in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), CAAF applied last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), and held that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive. Accordingly, CAAF reversed a rape conviction from 2014 based on an allegation dating to 2005.

The Solicitor General has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision. In a motion filed on May 10 and available here, the SG asserted:

The court [CAAF] stated that, under its decision in Mangahas, the UCMJ at the time of respondent’s offense in 2005 “established a five-year period of limitations,” id. at 5a, and the court concluded that the 2006 amendment to the UCMJ expressly eliminating any limitations period for rape charges did not apply, id. at 6a-10a. The court viewed its precedent to require treating the issue as a question of retroactivity; applied presumptions disfavoring the amendment’s application; and refused to find those presumptions overcome. See ibid. The court rejected the government’s contention that applying the 2006 amendment would not actually be a “‘retroactive’ 5 application of the law because the 2006 amendment did not attach any new legal obligations on” respondent, as well as its contention that Congress intended the 2006 amendment to apply to cases like respondent’s because it was simply codifying the CAAF’s then-extant decisions in Stebbins and Willenbring, id. at 8a-10a. The CAAF also rejected the government’s contention that respondent had relinquished the limitations defense by failing to raise it at trial. Id. at 10a-12a.

On Friday, administration officials posited the President may invoke the “tremendous power” of The Insurrection Act of 1807 (10 U.S.C. 252) in order to have federal troops enforce the Nation’s domestic immigration laws. Of course, this is not new – a small number of judge advocates have already been detailed to the Department of Justice since last summer, augmenting that agency as immigration prosecutors. That move was decried by some lawmakers as “unwise,” but the practice was not halted. But, the administration’s latest rhetorical volley has inspired fevered commentary across the political news spectrum. Into that fray comes a short thought-piece by Professor Steve Vladeck, of the University of Texas School of Law, which was just recently published in The Atlantic.

Professor Vladeck’s commentary posits:

[A]lthough Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule.

Read more »

A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Hale. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on May 21, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

On Wednesday CAAF granted review of ordered a response to a Grostefon issue in this Army case:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings filed in the case, it is ordered that Appellee will file a substantive answer to the following issue personally raised by Appellant:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

Appellee’s answer will be filed within 15 days of the date of this order. A reply may be filed by Appellant within 5 days of Appellee’s answer.

There’s no opinion on the Army CCA’s website (meaning that the CCA summarily affirmed).

CAAF decided the Air Force case of United States v. Meakin, __ M.J. __, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

Read more »

CAAF posted this announcement of the annual end-of-term reception to be held after the oral arguments on May 22, 2019:

THE PENTAGON CHAPTER, FEDERAL BAR ASSOCIATION, AND THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES INVITE YOU TO A RECEPTION TO CELEBRATE THE COURT’S 2018-2019 TERM

Please join the U.S. Court of Appeals for the Armed Forces and the Pentagon Chapter on Wednesday, May 22, 2019, beginning at 12:00 Noon for a reception to mark the end of the oral argument sessions for this term. Reception will be at the Court, 450 E Street, NW, Washington DC 20442. (Nearest Metro stop is Judiciary Square.) There will be pizza and drinks served at no cost to attendees.

There is no charge for this event, but we need an accurate count to ensure we have right amount of pizza and drinks. Please RSVP by Monday, May 20, 2019, to John Harms, johnkharms@gmail.com or 978-235-3633.

Multiple news agencies report that President Trump issued a pardon to former Army Lieutenant Michael Behenna. Fox News quotes White House Press Secretary Sarah Sanders:

White House Press Secretary Sarah Sanders cited “broad support” for Michael Behenna, of Edmond, Okla., “from the military, Oklahoma elected officials, and the public” — including 37 generals and admirals, along with a former Pentagon inspector general — as the reason for Trump’s clemency grant. Sanders also said Behenna had been a “model prisoner” while serving his sentence.

“In light of these facts, Mr. Behenna is entirely deserving of this Grant of Executive Clemency,” Sanders concluded.

In April 2008, Behenna was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years., The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years.

CAAF affirmed the convictions in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (CAAFlog case page), holding that Behenna lost and did not regain the right to self-defense as a matter of law during the encounter, and that the prosecution’s late disclosure of a potentially-exculpatory opinion held by a prosecution expert was harmless. The Supreme Court denied certiorari in 2013. Behenna was subsequently granted parole and released from confinement in 2014, and became a ranch hand.

Behenna’s pardon isn’t President Trump’s first pardon for a former servicemember. The President gave Kristian Saucier a pardon for his conviction of violating 18 U.S.C. § 793(e) for illegally retaining photographs of classified areas of a nuclear submarine.

President Obama also granted clemency, including the commuting the death sentence of Private Loving and commuting the 35-year sentence of Private Manning. Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Loving’s sentence was commuted to life without the possibility of parole and Manning’s was commuted to confinement until May 17, 2017 (effectively a 7-year term). Both actions were taken on January 17, 2017; three days before the end of Obama’s second term. Loving remains in post-trial confinement, while Manning is newly confined – and has been for the past two months – for contempt of court.

Commutations & Clemency was the #9 Military Justice Story of 2017, and we discussed Presidential pardons for convicted wartime murders last year, in this Scholarship Saturday post.

This week at SCOTUS: The Court denied cert. in King on April 29. Additionally, a new cert. petition (available here) was filed in Hale v. United States, No. 18-1383, on May 2, 2019. In United States v. Hale, 78 M.J. 268 (C.A.A.F. Feb. 6, 2019) (CAAFlog case page), a majority of CAAF found that evidence of conduct that was not subject to prosecution under the UCMJ was properly used to prove intent associated with conduct that was subject to prosecution. The petition presents the following questions:

1. Whether the Court of Appeals erred in relying on factual sufficiency of the evidence to resolve a question of plain error, where the alleged error related to a legal defect in jurisdiction.

2. Whether instructions focusing “on or about” the charged dates invited a general verdict based on conduct outside of the court-martial’s jurisdiction.

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 will not hold oral arguments on May 7-8, 2019. The next scheduled oral arguments at CAAF are on May 21, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

On Wednesday CAAF granted review in this Army case:

No. 19-0178/AR. U.S. v. Robert J. Rice. CCA 20160695. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT REQUIRES DISMISSAL OF APPELLANT’S CONVICTIONS.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA issued a published opinion available here and at 78 M.J. 649.

Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. But, “for unknown reasons, the government elected to divide various child pornography charges between military prosecutors and prosecutors with the U.S. Attorney’s Office for the Middle District of Pennsylvania. Thus ensued the debacle which we are now compelled to review.” 78 M.J. at 651. And debacle it was, with the CCA remarking that “what happened in this case should not happen again.” 78 M.J. at 652.

Rice was convicted in District Court, by a jury, of various offenses including wrongful possession of child pornography. Then – prior to being sentenced in the District Court – Rice conditionally pleaded guilty (preserving a double jeopardy objection) to wrongful possession of child pornography at a general court-martial. Returning to District Court for sentencing, Rice sought (and won) dismissal of his civil conviction for wrongful possession based on double jeopardy. Then, during appellate review of his court-martial, he sought dismissal of the court-martial conviction too (for the same reason).

The Army court agreed that Rice’s convictions violate the prohibition against double jeopardy, holding that “the government placed [Rice] in jeopardy twice” because his “conviction at the District Court of possessing child pornography necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ,” and because “an accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct.” 78 M.J. at 654. But that did not win Rice reversal of his court-martial conviction because:

Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.

Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an unjustified windfall.

78 M.J. at 656 (marks and citations omitted).