CAAF will hear oral argument in the Air Force case of United States v. Barker, No. 17-0551/AF (CAAFlog case page), on Tuesday, February 27, 2018, at 9:30 a.m. Two granted issues question the Air Force CCA’s finding of error in the admission of two out of three victim-impact statements offered by the prosecution, but no prejudice to the appellant’s rights:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Airman First Class (E-3) Barker pleaded guilty to possession and viewing child pornography. He was not, however, charged with or convicted of any offense related to production or distribution of such materials; a point repeatedly emphasized in his brief. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit.

On appeal, the Air Force CCA considered the letters under two different rules applicable to such matters: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. The CCA then found that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF’s review focuses on the January statement that the CCA found admissible.

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This week at SCOTUS: A new cert. petition with filed in Gray v. United States, No. 17-7769 (CAAFlog case page). Ronald Gray is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Back on November 8, in a per curiam decision I analyzed here, CAAF dismissed a writ-appeal petition with prejudice. The decision was so remarkable that the next day I wrote a second, deeper analysis (available here). Gray’s cert. petition questions CAAF’s dismissal. The petition is available here. The questions presented are:

1. Which court system, Article I military or Article III civil, appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal?

2. Does 28 U.S.C. § 1259(1) confer certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case?

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

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

Update: A reader informs me that the Army CCA will hear oral argument in one case this week, on Thursday, February 22, 2018, at 10 a.m. The CCA will hear argument on both an appeal and a petition for a new trial:

United States v. Kohlbek, No. 20160427

I. Whether the military judge erred by prohibiting the appellant from presenting evidence relevant to the appellant’s post-polygraph statement.

Petition for new trial:
Whether this court should grant appellant’s petition for new trial based on newly discovered evidence.
I. Whether the military judge abused his discretion by failing to suppress the appellant’s post-polygraph statement.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 21, 2018, at the George Washington University Law School, 2000 H Street NW, Washington, DC 20052, at 12:05 p.m.:

United States v. Hoffmann, NMCCA No. 201400067

Case Summary: In 2013, a general court-martial comprised of officer and enlisted members convicted the appellant of multiple charges involving a child, and for possessing child pornography. We affirmed the conviction the following year. In 2016, the Court of Appeals for the Armed Forces (CAAF) set aside the findings and sentence, dismissing the child pornography charges with prejudice and authorized a rehearing on the remaining charges. [(CAAFlog case page)]

At his rehearing, a general court-martial comprised of officer members convicted the appellant, contrary to his pleas, of two charges involving a child. The appellant was sentenced to reduction to pay grade E-1, 10 years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the punitive discharge, ordered it executed.




Last night our email subscribers received a notification about a post from eight years ago. That was my fault. Sorry.

Outside of the occasional mistake, the email subscription feature is great. Subscribers get an email every time a new post is published. The email includes the title of the post, all content before the jump, and a link back to the blog.

You can subscribe by submitting your email address in the box on the right sidebar. If you don’t receive a confirmation email, you can check the status of your subscription here.

Cornell Law Professor Michael Heise, Venderbilt Law Professor Nancy King, and University of Chicago Law student Nicole Heise recently published an article entitled Criminal State Appeals Revealed, 70 Vand. L. Rev. 1939 (2017). Their work offers a detailed accounting of factors which tend to increase the the chance of successful criminal appeals.

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Carol Rosenberg reports here:

Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.

He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.

“I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”

He then walked off the bench at 10:12 a.m., declaring: “We are in abatement. We are out. Thank you. We’re in recess.”

Update: Transcript available here

Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri is a Saudi accused of orchestrating the 2000 bombing of USS Cole. According to the commissions website:

Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002.

CAAF decided the Coast Guard case of United States v. Harpole, __ M.J. __, No.17-0171/CG (CAAFlog case page) (link to slip op.), on Wednesday, February 14, 2018. The court unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.

Judge Ohlson writes for the court, joined by all but Chief Judge Stucky who dissents because he concludes that any motion to suppress would have failed.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page). Slip op. at 2.

After a night of drinking during a port call in Tahiti, Seaman (E-3) Harpole went into a four-person female stateroom aboard the USCGC Polar Star, ostensibly to retrieve his backpack from the alleged victim, Storekeeper Third Class (SK3) GR. While he was in the room, he and GR had sex. GR was later confronted by her roommates about the encounter but stated she could not remember what happened (because she too had been drinking during the port call). She then reported the incident as a sexual assault.

“Three days after the incident, Appellant informed his friend, Seaman Boatswain’s Mate (SNBM) SC, and a victim advocate, Yeoman First Class (YN1) Nipp, that SK3 GR had sexually assaulted him.” Slip op. at 4 (emphasis in original). YN1 Nipp then reported Harpole’s statements to the command and gave “a detailed written statement about [Harpole]’s communication to her.” Slip op. at 4.

Harpole’s defense moved to prevent YN1 Nipp from testifying, asserting the Mil. R. Evid. 514 victim advocate-victim privilege. The military judge found that the privilege does not apply and denied the motion. Harpole was then convicted by a general court-martial composed of members with enlisted representation of making a false official statement, two specifications of sexual assault, and housebreaking, and he was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. The Coast Guard CCA affirmed the findings and sentence, agreeing that the victim advocate-victim privilege does not apply and rejecting a claim of ineffective assistance of counsel on the basis that “the theory that [YN1 Nipp] was acting as a Victim Advocate is factually inconsistent with the theory that [YN1 Nipp] was required to give Appellant his Article 31(b) rights.” United States v. Harpole, No. 1420, slip op. at 8 (C.G. Ct. Crim. App. Nov. 10, 2016).

Judge Ohlson’s opinion of the court affirms the military judge and Coast Guard CCA’s conclusions about the privilege, but it scolds the CCA for asserting an inconsistency, noting that “there is nothing improper or unusual about counsel presenting arguments in the alternative before a trial judge.” Slip op. at 10 n.11.

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Carol Rosenberg of the Miami Herald provides this update from the al Nashiri proceedings at the Guantanamo commissions:

A war court judge, reversing himself from remarks a day earlier, said Wednesday that he was still deciding whether to send U.S. Marshals to pick up two civilian defense lawyers who quit the USS Cole case and then ignored a subpoena to appear at the war court.

“I said very clearly yesterday that I want draft options … I haven’t decided yet to issue any writs,” Air Force Col. Vance Spath said at the opening of a third day of a weeklong hearing that has mostly focused on the presentation of evidence to the judge before a jury is seated and the trial begins.

Carol also reports:

On Wednesday morning, the judge said the night before he was reading an online military justice blog, CAAFlog, as part of his professional responsibilities and saw a reference to a Miami Herald article about his order to the prosecution to prepare arrest warrants for Eliades and Spears. They had ignored a subpoena to appear before the court by video feed on Tuesday.

Spath said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo. If he has them seized, he said, they will be brought to war court headquarters in Washington, where the court has a secure video link to the maximum-security court.

The post is available here, and did indeed imply that the warrant would be to bring the attorneys to Guantanamo because that’s what I though Colonel Spath was suggesting based on my knowledge of the case and the orders Colonel Spath previously issued to the civilian defense counsel to appear and represent al Nashiri (outlined in a comment here). But I updated my post on Wednesday after I reviewed the transcript of Tuesday’s proceedings (available here), to reflect that a warrant would be to appear in Virginia.

That transcript from Tuesday, by the way, quotes Colonel Spath as saying:

So what I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.

Transcript at 11910 (emphasis added). The certainly looks like a decision to issue the warrant.

I will update this post when the transcript of today’s proceedings is available.

Update (Feb 15, 2018 @ ~2pm eastern): The transcript of the proceedings is available here, and includes the following statement by Colonel Spath:

And yes, I use CAAFlog. I don’t read the comments and I tend not to read the analysis; I don’t need their help, because some people suggest it has a bias. But what I appreciate about them is they tell me what cases have been decided, what cases are of interest. And then I can click on those links and go right to the case and I can read the case law, right, from CAAF or from AFCCA, or from the Supreme Court, and I can keep track of even cases that are affecting us. Seems like a reasonable one-stop shopping mechanism.

So I was a little surprised last night when I opened it to find this case making their — the top of the banner, and noticed very quickly that it said that I had ordered, or was going to order today, writs be issued against civilians to be dragged to GTMO. Imagine my surprise. Fortunately, there was a link to figure out where in the wide, wide world of sports is that coming from.

And it’s coming from a reporter who we brought down here and we bring down here willingly, and you know, put up, who got it wrong. I said very clearly yesterday I want draft writs so I have options as I figure out what to do, and I hadn’t made a decision yet. I don’t know if I could have been more clear. So I’ll say it again, I said yesterday I haven’t decided yet to issue any writs. If they’re issued, they’re not being brought to GTMO. Anybody paying attention to this process knows that, right?

Transcript at 11924-11925.

Yesterday CAAF granted review in an Army case:

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25

The Army CCA’s opinion is available here.

Update (Feb 14, 2018 @ ~1230 eastern): The original title of this post was based on my read of Carol Rosenberg’s reporting (quoted below). But, after reviewing the unofficial transcript of yesterday’s proceedings in the al Nashiri case (available here), I get the impression that Colonel Spath wants the civilian attorneys brought to testify remotely, by video teleconference (VTC), from the Mark Center in Alexandria, VA, and not brought to Guantanamo. Colonel Spath stated:

The witness [the civilian defense counsel] clearly refused, through counsel, because I saw the e-mail. And the Attorney Fox said they’re not showing. And I assume he can speak for them since he’s their attorney. And so I can’t see a valid excuse. Again, the e-mail that I was shown said I lack jurisdiction; I don’t. And that the — having to appear at the Mark Center by VTC for DoD civilians employed in D.C. would be oppressive, with no evidence to the contrary.

Transcript at 11909-11910. There are significant optics (if not legal) differences between a warrant of attachment to appear in Virginia and one to appear in Guantanamo.

Original post:

Air Force Colonel Vance Spath – the chief judge of the Air Force and a judge on the military commissions (and the person who held General Baker in contempt) – apparently wants federal authorities to use force to bring two DoD civilian attorneys to Guantanamo.

Carol Rosenberg of the Miami Herald reports here that:

The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court.

Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.

A warrant of attachment (see R.M.C. 703(e)(2)(G)(i); R.C.M. 703(e)(2)(G)(i)) is a “legal order addressed to an official directing that official to have the person named in the order brought before a court.” R.M.C. 703(e)(2)(G)(i) (discussion). The Manual for Courts-Martial provides the following discussion:

Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the code may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.

Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’s presence, testimony, or documents. The criminal complaint, prosecuted through the civilian federal courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process.

R.C.M. 703(e)(2)(G)(i) (discussion).

Carol Rosenberg also reports that:

The judge had earlier Tuesday expressed a reluctance to have the women seized. He said in court that their arrests could cause them to lose their security clearances and jobs with the Department of Defense and thwart his goal of having them return to the defense team of Abd al Rahim al Nashiri.

That’s a pretty unrealistic goal, particularly since Rule for Military Commissions 502(d)(3)(C) states that civilian defense counsel in a military commission must:

[have] not been the subject of any sanction of [sic] disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct

Such sanction or disciplinary action seems to be inevitable (if it hasn’t actually happened already). This is – by the way – a unique rule for the Guantanamo commissions; there is no similar limitation on civilian defense counsel in courts-martial.

But even if al-Nashiri’s former civilian defense counsel aren’t disqualified by rule, there’s the fact that now facing a real threat of arrest and involuntary relocation to Guantanamo, they almost certainly have a conflict of interest with the accused.

And we know what that arrest will look like, because it’s happened before. The last person subject to a warrant of attachment from a military commission was demobilized Navy Reserve Lieutenant Commander Stephen Gill – a judge advocate – who (also according to Carol Rosenberg’s reporting):

was picked up at his home, apparently in Massachusetts, on [Tuesday, October 18, 2016] “at gunpoint,” he estimated by 20 officers, put in three-point restraints and held overnight at an Alexandria County, Virginia, detention facility.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 21, 2018.

This past June, the Department of Defense announced a six-month delay on enlistments for transgender individuals, but imposed no restrictions on those already serving. Associated Press, Pentagon OKs 6-month delay in transgendered enlistments, 1 Jul 17.

Apparently dissatisfied with that policy, in July, the President used Twitter to send out this early-morning message:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you

Donald J. Trump (@realDonaldTrump), 26 Jul 17, 5:55-6:08 a.m., Tweet 1, Tweet 2Tweet 3.

The Department of Defense’s response to this three sentence missive by the Commander in Chief came the next morning when the Chairman of the Joint Chiefs of Staff released a letter, shared with multiple media outlets, asserting, some might say defiantly:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.

In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.

Barbara Starr (barbarastarrcnn), CNN Pentagon Correspondent, 27 Jul 17, 7:59 a.m., Tweet; Indrees Ali (@indreesali114), Reuters Foreign Policy Correspondent, 27 Jul 17, 7:46 a.m., Tweet 1, Tweet 2.

In August, the White House followed up with a written memorandum ordering the Department of Defense to continue barring new enlistments of transgender individuals beyond 1 Jan 18 (the date the Department’s own delay was due to expire), while putting off until March 2018 the question of whether transgender individuals already in the service may continue serving. Presidential Memorandum for the Secretary of Defense and Secretary of Homeland Security, 25 Aug 17.

This order, the Department of Defense accepted. Memorandum: Military Service by Transgender Individuals – Interim Guidance, 14 Sep 17. However, the United States District Court for the District of Columbia found it wanting as regards the key provisions of the President’s memorandum, ordering the Department of Defense:

[T]o revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum—that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.

Order, Doe v. Trump, Civil Action no. 17-1597 (D.D.C. 30 Oct 17). The Department of Defense announced in December that it would comply with the Court’s order. Adam Weinstein, DoD To Allow Transgender Enlistments As Courts Tear Apart Trump’s Ban, Task and Purpose, 11 Dec 17.

A new article published by the Harvard Law Review, entitled Tweets on Transgender Military Servicemembers, 131 Harv. L. Rev. 934 (2018), covers these turns of events, and particularly queries why the Department of Defense did not obey the President’s initial Tweeted instructions.

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CAAF decided the Army case of United States v. Jerkins, __ M.J. __, No. 17-0203/AR (CAAFlog case page) (link to slip op.), on Thursday, February 8, 2018. Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.

Chief Judge Stucky writes for the court, joined by Judge Sparks and Senior Judge Effron. Judge Ohlson dissents, joined by Judge Ryan.

Major (O-4) Jerkins was convicted of assault consummated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. After the members made their findings, the defense called witnesses during the sentencing phase to testify about Jerkins prior good service. In rebuttal the prosecution offered into evidence a GOMOR that was issued approximately two weeks before trial.

A GOMOR is a nonpunitive (administrative) letter inserted into the recipient’s personnel record, and it usually has a significant negative impact on the recipient’s military career. Paragraph 3-4 of Army Regulation 600-37 establishes procedures for the issuance and filing of a GOMOR, including a process that ensures soldiers have an opportunity to respond to the underlying factual claims. In Jerkins case, that process was still underway when the GOMOR was admitted into evidence and Jerkins was sentenced to a dismissal.

The defense objected to admission of the GOMOR, but the military judge admitted it over the objection. The members then sentenced Jerkins to confinement for six months and a dismissal. Jerkins had 19 years of service when he was charged, and the adjudged dismissal denied him a military retirement. The Army CCA affirmed the findings and sentence after rejecting a claim of ineffective assistance of counsel raised against Jerkins’ civilian and military trial defense counsel. CAAF then granted review of a single issue:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

While CAAF splits on the impact of the GOMOR on the adjudged sentence, it unanimously concludes that the GOMOR was improperly admitted even under the deferential standard of abuse of discretion.

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CAAF decided the interlocutory Air Force case of United States v. Mangahas, __ M.J. __, No. 17-0434/AF (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Answering only the issue specified by the court after oral argument, CAAF holds that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.

Judge Ryan writes for a unanimous court.

Mangahas is a lieutenant colonel (O-5) in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. But she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.

Mangahas raised numerous objections, including objections based on the statute of limitations and on his due process (Fifth Amendment) right to a speedy trial. The speedy trial motion got traction, and a military judge dismissed the charge with prejudice (meaning Mangahas may never be tried), in part because the passage of time caused the loss of potentially-exculpatory evidence.

But the prosecution appealed, and a three-judge panel of the Air Force CCA reversed the military judge’s dismissal and allowed the trial to proceed. CAAF then ordered a stay of proceedings and granted review of the speedy trial issue:

Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating [Appellant’s] Fifth Amendment Right to a Speedy Trial.

CAAF also heard oral argument on the speedy trial issue. But then it specified a wholly different issue for review and ordered additional briefs:

In light of Coker v. Georgia, 433 U.S. 584, 598 (1977), and United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), was the offense of rape of an adult woman, a violation of Article 120, UCMJ, 10 U.S.C. § 920 (Supp. II 1997), a crime punishable by death within the meaning of Article 43, UCMJ, 10 U.S.C. § 843 (1994).

Article 43 of the UCMJ – like federal civil law – contains a baseline five year statute of limitations. Congress amended Article 43 in 1986 to add exceptions, including an exception for “any offense punishable by death.” Pub. L. 99–661, §805(a). At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the offense wasn’t made gender neutral until 1992), and the prosecution of Mangahas depended on application of that capital exception.

Nine years before Congress added the capital exception to Article 43, however, the Supreme Court held that death is an unconstitutional punishment for the offense of rape of an adult woman in Coker v. Georgia, 433 U.S. 584, 598 (1977). CAAF acknowledged that limitation in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), remarking that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” regardless of whether there were aggravating factors that would make death a constitutionally-permissible punishment.

Now CAAF reverses Willenbring and its progeny, concluding that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” Slip op. at 8 (emphases in original).

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CAAF decided the Army case of United States v. Acevedo, __ M.J. __, No. 17-0224/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

Judge Sparks writes for the court, joined by all but Judge Ryan who dissents.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM by inveiglement, in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

CAAF then granted review of four issues. Three were Dalmazzi/Ortiz trailer issues. The fourth questioned:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

A majority of CAAF finds that the evidence is sufficient. Judge Ryan, however, rejects this holding as “contrary to the precedent of the Supreme Court, the federal courts of appeals that have considered the issue, and our own Court,” and she invokes CAAF’s “heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a rough form of justice.” Diss. op at 4 (marks and citation omitted).

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