CAAF closes when the Office of Personnel Management orders a closure due to inclement weather.

The National Weather Service has posted a winter storm warning for Washington, DC for tomorrow morning. Considering that, CAAF has posted this notice regarding tomorrow’s scheduled oral arguments. The notice includes the following:

In the event the Office of Personnel Management authorizes a two hour delay in reporting, Counsel should expect the cases set for hearing on Wednesday, February 20, 2019, to be called on time, starting at 0930, as previously set by hearing notices.

In the event of a Court closure on Wednesday, February 20, 2019, the cases set for hearing on that date, Tovarchavez 18-0371/AR and Voorhees 18-0372/AF, will be heard at the same times and sequence on the following day, Thursday, February 21, 2019.

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

United States v. McDonald, No. 18-0308/AR (CAAFlog case page): Oral argument audio.

United States v. Gleason, No. 18-0305/AR (CAAFlog case page): Oral argument audio.

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

Last week Maj. Gen. Charles Dunlap, USAF (Ret.), who served as the Deputy JAG of the Air Force, published this article defending court-martial jurisdiction over retired members of the active components.

He writes:

Put simply, in the case of retired personnel voluntarily collecting retired pay, to include those in the Fleet Marine Reserve, they have chosen to keep a relationship with the military.

And indeed it’s true that nobody forces retired members to retire rather than separate at the end of a military career. Certainly there are financial and social benefits to retirement – retired pay, retired benefits, and retired status – but those benefits come with the costs of court-martial jurisdiction and the possibility of involuntary recall to active duty. That’s the deal.

Maj. Gen. Dunlap’s article also responds to many of the arguments made in the cert. petition in Larrabee (that was denied today), including the observation that Larrabee (who pleaded guilty to sexual assault at a general court-martial convened in Japan):

may now regret transferring to the Fleet Marine Reserve given the outcome of his trial, but my bet – based on literally everyone I know – is that the overwhelming majority of retired military personnel are proud of their service, and would hardly be pleased to have it downgraded to some lesser “connection” simply so that a rogue vet might not be held accountable in the military justice system.

That system, by the way, was recently characterized as a fair one by Justice Kagan in Ortiz. She noted it handles its cases “in strict accordance with a body of federal law (of course including the Constitution),” and offers “procedural protections… to a service member [that] are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal.” What, really, is wrong with judging military retirees in such forum? Would Larrabee have seriously preferred trial in Japanese court?

Undoubtedly Larrabee would have preferred a pardon. But considering that he pleaded guilty to sexual assault, it’s hard to see injustice in court-martial jurisdiction when he willingly (and almost-certainly eagerly) accepted that jurisdiction in exchange for the privileges and benefits of an active duty military retirement.

Of course, Larrabee wasn’t fully retired at the time of his court-martial. In the Navy and Marine Corps, an enlisted member with between 20 and 30 years of active duty service (like Larrabee) can separate, continue to serve, or be transferred to the Fleet Reserve (Sailors) or Fleet Marine Corps Reserve (Marines), where the member will receive retainer pay until he or she reaches 30 years of service and eligibility for regular retirement. Nevertheless, members of the Fleet Reserve and Fleet Marine Corps Reserve are in a status that – like regular retired members – includes court-martial jurisdiction. See 10 U.S.C. § 802(a)(6).

It’s also worth mentioning that enlisted members are not entitled to transfer to the retired list until they complete 30 years of active duty service. Compare, for example, 10 U.S.C. § 7314 (soldier with 20 years may be retired), with 10 U.S.C. § 7317 (solder with 30 years shall be retired). So Larrabee’s status was doubly-voluntary; very much like an ordinary enlistment.

Today’s order list (available here) includes a denial of the petition for certiorari in Larrabee.  The petition (available here) challenged the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay.

The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

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

This week at CAAF: CAAF will hear oral arguments in four cases this week:

Tuesday, February 19, 2019, at 9:30 a.m.

United States v. McDonald, No. 18-0308/AR (CAAFlog case page)

Issue: Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

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

Followed by:

United States v. Gleason, No. 18-0305/AR (CAAFlog case page)

Issue: Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

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

Wednesday, February 20, 2019, at 9:30 a.m.

United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page)

Issue: Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

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

Followed by:

United States v. Voorhees, No. 18-0372/AF (CAAFlog case page)

Issues:
I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

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

This week at the ACCA: The Army CCA will hear oral argument in one case this week:

Thursday, February 21, 2019, at 2 p.m.:

United States v. Pacheco, No. 20150725

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 1, 2019.

CAAF will hear oral argument in the Air Force case of United States v. Voorhees, No. 18-0372/AF (CAAFlog case page), on Wednesday, February 20, 2019, after the argument in Tovarchavez. Three granted issues question the mens rea necessary to commit conduct unbecoming an officer and gentleman and the propriety of numerous aspects of the prosecution’s closing argument:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees had inappropriate communications with three women (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but was reversed by the Air Force CCA as factually insufficient in 2016. The CCA ordered a sentence rehearing, and Voorhees was sentenced to a reprimand and to be dismissed. The CCA affirmed the revised sentence last year.

On appeal, Voorhees challenged the sufficiency of the Article 133 specifications to state an offense and also the prosecution’s closing argument as improper. The CCA rejected the challenges in its 2016 opinion, and CAAF is now reviewing that decision.

Read more »

CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

Specialist (E-4) Tovarchavez was charged with sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; Article 59(a) states that:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

Put differently, if a legal error is harmless then a court-martial conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies; the error is prejudicial unless it is harmless beyond a reasonable doubt. And “an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.

Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.

The Government Divison’s brief asserts that the law is not so clear.

Read more »

CAAF will hear oral argument in the Army case of United States v. Gleason, No. 18-0305/AR (CAAFlog case page), on Tuesday, February 19, 2019, after the argument in McDonald. The court granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

Gleason presents an substantially-identical challenge. Staff Sergeant (E-6) Gleason was convicted of multiple offenses including a novel Article 134 specification alleging that he interfered with the ability of his victim to place a call requesting emergency assistance. Gleason asserts that the novel specification was improper because it eliminated elements of the enumerated Article 134 offense of obstruction of justice.

Read more »

CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

Read more »

Yesterday CAAF granted review in this Army case:

No. 19-0087/AR. U.S. v. Deontray D. Coleman. CCA 20170013. 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 assigned issue:

WHETHER SPECIFICATION 1 OF CHARGE VII IS MULTIPLICIOUS WITH SPECIFICATION 1 OF CHARGE I, AS THEY ARE PART OF THE SAME TRANSACTION.

Briefs (on the issue of multiplicity and not unreasonable multiplication of charges) will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here but does not address the granted issue.

CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative 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 court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.

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

Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), however that person must be reasonably available as determined by service regulations (that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) Buyske and Lieutenant Commander (LCDR) Gross. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case and four issues to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.

Read more »

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

This week at CAAF: The next scheduled oral arguments at CAAF are on February 19, 2019.

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

Tuesday, February 12, 2019, at 10 a.m.:

United States v. Steele, No. 20170303

Issues:
I. Whether the convening authority improperly approved the appellant’s sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial 1103(f)(1).

II. Whether the evidence is legally and factually insufficient to support the appellant’s conviction for indecent exposure.

Wednesday, February 13, 2019, at noon:

United States v. Lopez, No. 20170386

Issues:
I. Whether the Fort Benning garrison commander had the legal authority to order searches in privatized housing at Porter Village.

II. Does MCOE regulation number 190-11 prohibit the possession of unregistered firearms (or other applicable weapons) in Porter Village? If not, did the garrison commander still have a substantial basis for concluding that probable cause existed to search appellant’s house?

III. Assuming there was not probable cause to search appellant’s house, does the good faith exception apply? See United States v. Thomas, 908 F.3d 68 (4th cir. 2018); see also United States v. Perkins, 78 M.J. 550 (N.M. Ct. Crim. App. 2018) (certificate of rev. filed) __ M.M. __ (C.A.A.F. 10 Sep. 2018).

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, February 14, 2019, at 10 a.m.:

United States v. King, No. 201800016

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted appellant, a Master-At-Arms Seaman (E-3), contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The members sentenced him to confinement for eight years, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The CA ordered the sentence executed, except for the dishonorable discharge.

Issues:
I. Does Article 120(b)(1)(B) of the UCMJ fail to provide adequate standards by which an ordinary person can intelligently choose, in advance, whether a sexual encounter would be lawful, rendering it unconstitutionally vague?

II. Were the findings instructions plainly erroneous because lack of consent was not included as an element of the offense of sexual assault by bodily harm, and because the instructions would have permitted a conviction without the prosecution proving lack of consent beyond a reasonable doubt?

This blog has frequently discussed ongoing efforts to make the various disciplines of forensic science more reliable:

Scholarship Saturday: Strategies to improve the quality of expert testimony offered at trial (August 12, 2017)

Scholarship Saturday: The chronic problem of invalid expert opinion testimony (August 5, 2017)

Scholarship Saturday: DOJ asks the public to submit ideas on forensic science (April 15, 2017)

Scholarship Saturday: Forensic science standards beginning to take form (April 1, 2017)

Scholarship Saturday: Believe the accused (April 25, 2015)

A recent three-part video series entitled “False Positive”, created by Joss Fong and published by Vox Media, explores the issue anew, through the lens of the 1985 wrongful conviction of Robert Lee Stinson.

At 21 years old, Mr. Stinson was arrested and wrongfully incarcerated for 23 years because of unreliable in-court expert opinion testimony from two government forensic scientists.

Read more »

CAAF decided the Navy case of United States v. Forbes, __ M.J. __, No. 18-0304/NA (CAAFlog case page) (link to slip op.), on February  7, 2019. The court unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

Judge Sparks writes for a unanimous court.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) in violation of Article 120(b)(1)(B) (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”).

74 M.J. at 68. The Navy-Marine Corps CCA applied Gutierrez to affirm Forbes’ guilty pleas in a published decision. United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). CAAF then granted review of one issue:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

In today’s opinion Judge Sparks clearly explains that the guilty plea in this case is entirely proper because “true consent must be informed,” slip op. at 4 n.4, and therefore:

Appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse.

Slip op. at 4.

Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” CAAF’s holding in this case will almost certainly apply to that new offense.

Case Links:
NMCCA opinion
Blog post: NMCCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N.M. App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Hale, __ M.J. __, No. 18-0162/AF (CAAFlog case page) (link to slip op.), on February 6, 2019. Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

Judge Sparks writes for the court joined by all but Judge Ohlson, who dissents in part (disagreeing with the core holding of the majority opinion).

CAAF then granted review of two issues and specified a third:

Granted Issues:
I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?

II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.

Specified Issue:
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.

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