Back in July I wrote this post about favorable tax treatment for back pay as a result of a reversed court-martial conviction

A deadline for claims is December 17, 2018.

The Marshall Project recently wrote about the program here.

Retired Army Major General James J. Grazioplene – who last year was charged with committing rape on six occasions while on active duty in 1983-1989, but whose case was dismissed in the wake of CAAF’s decision in Mangahas – now faces prosecution in Virgina, according to this Army Times report:

Retired Maj. Gen. James Grazioplene faces three charges of incest and three charges of rape related to allegations of rape of a minor dating back to his time in service over the course of years in various locations.

Grazioplene now lives in Gainesville, Virginia. He faces charges lodged against him out of Prince William County Circuit Court.

The report notes:

Virginia does not have a statute of limitations on rape cases.

According to the county court records, Grazioplene is being charged with rape and incest after the case was heard by a grand jury earlier this month. The document lists the offense date as Aug. 1, 1987.

At the time, he and his family lived in Woodbridge, Virginia, which is in Prince William County.

This week at SCOTUS: The petition in Eppes was denied on December 3. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

This week at the CGCCA: It’s not posted on the court’s website, but the Coast Guard CCA will hear oral argument in one case this week, on Thursday, December 13, 2018, at 10 a.m., at the Navy-Marine Corps CCA’s courtroom aboard the Washington Navy Yard:

United States v. Rogers, No. 1391

Issues:
I: Whether Specification 3 of Charge III fails to state an offense under Article 134,Clause 3 where it fails to allege two elements required to establish a violation of 18 U.S.C. § 499.

II: Whether Specification 3 of Charge III fails to state an offense under Article 134, Clause 2 for wrongful use of a false or unauthorized military identification card where it fails to allege three elements of the offense.

[updated with modified issue] [III]: Whether the evidence of obstruction of justice under Article 134 was legally sufficient where the conduct was a statement by the accused to civilian detectives in a civilian law enforcement investigation that his memory blacked out at a certain point in the evening.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 20, 2018.

The Joint Service Committee recently published PDF versions of portions of the Manual for Courts-Martial (2019 ed.). They’re available on the JSC’s website, here, and at the below links:

Part I – Preamble
Part II – Rules for Courts-Martial
Part III – Military Rules of Evidence
Part IV – Punitive Articles
Part V – Nonjudicial Punishment

Appendix 2 – UCMJ

2019 MCM Supplementary Materials

On Monday CAAF granted review in this Army case:

No. 18-0364/AR. U.S. v. Michael E. Harris. CCA 20170100. 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 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.

Briefs will be filed under Rule 25.

The appellant was charged with child pornography offenses by the State of Florida and released on bond. He then fled to Cambodia. He was eventually returned to Florida and confined pending trial, but Florida authorities dismissed the case because of witness issues. He was then ordered into pretrial confinement and ultimately pleaded guilty at a general court-martial composed of a military judge alone to wrongful possession of child pornography and desertion. The military judge, however, rejected his request for confinement credit for the time spent in custody in Florida.

Army CCA affirmed in a published decision, available here (78 M.J. 521). It concluded:

The state of Florida did not confine appellant until after he fled to Cambodia and failed to appear to face the Florida child pornography charges. Appellant was charged and placed in pre-trial confinement for the offense of fleeing Florida’s criminal process. The state of Florida was not acting on behalf of the Army and he was not being held in confinement at the request of the Army. The fact appellant’s confinement by the state of Florida exceeded his eventual sentence for the crime of failure to appear does not obligate the Federal government to lessen the appellant’s punishment for different offenses against the Federal sovereign.

78 M.J. at 525.

Here is the text of the presidential proclamation announcing the death of George H.W. Bush:

It is my sorrowful duty to announce officially the death of George Herbert Walker Bush, the forty-first President of the United States, on November 30, 2018.

President Bush led a great American life, one that combined and personified two of our Nation’s greatest virtues: an entrepreneurial spirit and a commitment to public service. Our country will greatly miss his inspiring example.

On the day he turned 18, 6 months after the attack on Pearl Harbor, George H.W. Bush volunteered for combat duty in the Second World War. The youngest aviator in United States naval history at the time, he flew 58 combat missions, including one in which, after taking enemy fire, he parachuted from his burning plane into the Pacific Ocean. After the war, he returned home and started a business. In his words, “the big thing” he learned from this endeavor was “the satisfaction of creating jobs.”

The same unselfish spirit that motivated his business pursuits later inspired him to resume the public service he began as a young man. First, as a member of Congress, then as Ambassador to the United Nations, Chief of the United States Liaison Office in China, Director of Central Intelligence, Vice President, and finally President of the United States, George H.W. Bush guided our Nation through the Cold War, to its peaceful and victorious end, and into the decades of prosperity that have followed. Through sound judgment, practical wisdom, and steady leadership, President Bush made safer the second half of a tumultuous and dangerous century.

Even with all he accomplished in service to our Nation, President Bush remained humble. He never believed that government — even when under his own leadership — could be the source of our Nation’s strength or its greatness. America, he rightly told us, is illuminated by “a thousand points of light,” “ethnic, religious, social, business, labor union, neighborhood, regional and other organizations, all of them varied, voluntary and unique” in which Americans serve Americans to build and maintain the greatest Nation on the face of the Earth. President Bush recognized that these communities of people are the true source of America’s strength and vitality.

It is with great sadness that we mark the passing of one of America’s greatest points of light, the death of President George H.W. Bush.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States, in honor and tribute to the memory of President George H.W. Bush, and as an expression of public sorrow, do hereby direct that the flag of the United States be displayed at half-staff at the White House and on all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions for a period of 30 days from the day of his death. I also direct that, for the same length of time, the representatives of the United States in foreign countries shall make similar arrangements for the display of the flag at half staff over their embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations.

I hereby order that suitable honors be rendered by units of the Armed Forces under orders of the Secretary of Defense.

I do further appoint December 5, 2018, as a National Day of Mourning throughout the United States. I call on the American people to assemble on that day in their respective places of worship, there to pay homage to the memory of President George H.W. Bush. I invite the people of the world who share our grief to join us in this solemn observance.

IN WITNESS WHEREOF, I have hereunto set my hand this first day of December, in the year of our Lord two thousand eighteen, and of the Independence of the United States of America the two hundred and forty-third.

DONALD J. TRUMP

I’ve been experimenting with distribution of oral arguments in military cases via podcast. So far the experiment is working well, so I’m sharing it with you.

The podcast is available here: https://anchor.fm/caaflog/

It contains the audio from every CAAF argument of the term to date, the available CCA arguments, and the argument in EV v. Robinson. You should be able to subscribe with your preferred podcast app.

Please send any feedback to zack@caaflog.com

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

United States v. Cooper, No. 18-0282/NA (CAAFlog case page): Oral argument audio.

United States v. Forbes, 18-0304/NA (CAAFlog case page): Oral argument audio.

United States v. Briggs, No. 16-0711/AF (CAAFlog case page): Oral argument audio.

United States v. Stout, No. 18-0273/AR (CAAFlog case page): Oral argument audio.

Last Thursday CAAF granted review in two cases:

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER UNITED STATES v. ORBEN, WHICH ESTABLISHED WHAT THE GOVERNMENT MUST SHOW TO PROVE INTENT FOR INDECENT LIBERTIES UNDER ARTICLE 134 (THE PRECURSOR TO ARTICLE 120b), APPLIES TO THE INTENT ELEMENT OF ARTICLE 120b(c), SEXUAL ABUSE OF A CHILD.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s decision is available here. The case involves a conviction for sexual abuse of a child based upon Rodriguez kissing a child’s feet with an intent to arouse or gratify his own sexual desire. To prove Rodriguez’s intent, the military judge allowed the prosecution to admit evidence of Rodriguez’ foot fetish. The CCA affirmed.

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. 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 MILITARY JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The CCA rejected the granted issue in a footnote, concluding: “Miss DF’s initial statement to her mother and SC in August 2013 was properly admitted by the military judge. A prior consistent statement that precedes an allegation of improper influence is not hearsay. Mil. R. Evid. 801(d)(1)(B).” Slip op. at 10 n.6.

CAAF will hear oral argument in the Navy case of United States v. Forbes, No. 18-0304/NA (CAAFlog case page), on Tuesday, December 4, 2018. A single issue questions whether a guilty plea to sexual assault should be reversed:

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.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm in violation of Article 120 (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.”). He is therefore guilty of assault consummated by battery.

74 M.J. at 68. Applying Gutierrez to Forbes’ guilty plea the Navy-Marine Corps CCA explained:

Gutierrez’s conduct—engaging in otherwise-consensual sexual activity without telling his partners that he had HIV—included an “offensive touching to which his sexual partners did not provide meaningful informed consent” because “‘[w]ithout disclosure of HIV status there cannot be a true consent.'” Id. (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.)).

Here, in explicit reliance on the CAAF’s holding in Gutierrez, the government charged the appellant with both assault consummated by battery in violation of Article 128(a), UCMJ, and sexual assault by bodily harm in violation of Article 120(b)(1)(B), UCMJ. In a bench memorandum, the trial counsel explained that since “failure to disclose an accused’s HIV status constituted an offensive touching because the accused’s partners did not provide informed meaningful consent, ‘the appropriate charges would be either 1) sexual assault by bodily harm; or 2) assault consummated by battery.'”

United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). The CCA also noted:

We make no distinction between the appellant’s failure to inform his sexual partners that he was HIV-positive and any affirmative statement denying that he was HIV-positive or intimating that he was not HIV-positive. Gutierrez does not address the situation where an HIV-positive individual engages in sexual activity after denying his positive status. It is enough, under Gutierrez, that the appellant simply did not tell his partners that he was HIV-positive.

77 M.J. at 772 n.20. Now CAAF will determine if that’s correct.

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CAAF will hear oral argument in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page), on Wednesday, December 4, 2018, at 11 a.m. (after the arguments in Cooper and Briggs). The court granted review of one issue questioning whether changes to three specifications were proper:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

In 2012, Staff Sergeant (E-6) Stout pleaded guilty to abusive sexual contact with a child, indecent liberties with a child, and wrongful possession of child pornography, in violation of Articles 120 and 134, and was sentenced to confinement for eight years, reduction to E-1, and a bad-conduct discharge. As part of a plea agreement various other charges were dismissed. But on appeal Stout challenged his pleas and his pleas were reversed by the Army CCA in an opinion discussed here.

A rehearing was authorized, but Stout did not plead guilty again. Instead, he contested the charges. A general court-martial composed of a military judge alone convicted him of committing many more offenses than he originally pleaded guilty to committing: three specifications of abusive sexual contact with a child, two specifications of indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. Stout was then sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge (the new convictions involved things not included in the original convictions, avoiding the sentence limitation in Article 63).

The charges at the rehearing, however, were not identical to the charges at the original trial. Instead, there were “dozens of amendments to the charge sheet.” App. Br. at 4. Many of the amendments were minor (such as correcting spelling mistakes), but three changes “expanded the timeframes of Specifications 1 and 6 of Charge I, and the Specification of Charge II.” App. Br. at 4. Specifically:

For Specification 7 of Charge I,the dates were changed from “between on or about 14 January 2009 and on or about 28 January 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge II, the dates were changed from “between on or about 14 February 2009 and on or about 22 March 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge III, the dates were changed from “between on or about 1 November 2009 to on or about 31 December 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126).

Gov’t Div. Br. at 7. Stout objected, asserting that the expanded time periods were a major change, but the military judge overruled the objection and the Army CCA affirmed. Argument over that objection now continues at CAAF.

Last year, in United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (CAAFlog case page), a unanimous CAAF explained that a major change is one where an “additional or different offense is charged … [or] substantial rights of the defendant are not prejudiced.” It further explained that because R.C.M. 603(d)  – which prohibits such changes – does not discuss prejudice, when there is a major change “there is no charge to which jurisdiction can attach” and reversal is required. 76 M.J. at 301-302. Accordingly, if Stout can convince CAAF that the military judge and Army CCA got it wrong, the affected charges will be dismissed.

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Note: In honor of the death of former President George H. W. Bush, President Trump ordered the closure of all executive departments and agencies on Wednesday, December 5. CAAF will also close on Wednesday.

Update: All four cases scheduled to be argued at CAAF this week will be argued on Tuesday, December 4, 2018, beginning at 8 a.m., in the following order: Cooper, Forbes, Briggs, then Stout.

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

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

Tuesday, December 4, 2018, at 9:30 a.m.:

United States v. Cooper, No. 18-0282/NA (CAAFlog case page)

Issues:
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?

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

Followed by:

United States v. Briggs, No. 16-0711/AF (CAAFlog case page)

Issues:
I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

Case Links:
AFCCA opinion
Blog post: SCOTUS remands
Blog post: CAAF grants
Appellant’s brief
Appelllee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, December 5, 2018, at 9:30 a.m. (see note above)

United States v. Stout, No. 18-0273/AR (CAAFlog case page)

Issue: Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
• Blog post: Argument preview (working)

Followed by:

United States v. Forbes, 18-0304/NA (CAAFlog case page)

Issue: Whether the NMCCA 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.

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 (working)

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 6, 2018, at 10 a.m.:

United States v. Solomon, No. 20160456

Issues:
I. Whether the military judge’s findings instructions are plain error.

II. The military judge prohibited the defense from conducting recross-examination. Did this deny appellant his Sixth Amendment right to confront the witnesses against him?

[III]. Whether it was harmless beyond a reasonable doubt for the military judge to prohibit the defense from presenting evidence that W.S. had a motive to fabricate.

Disclosure: I represent the appellant in my civilian capacity and will argue this case.

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

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on December 13, 2018. The argument will occur in the Navy-Marine Corps CCA’s courtroom aboard the Washington Navy Yard.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 20, 2018.

CAAF will hear oral argument in the Air Force case of United States v. Briggs, No. 16-0711/AF (CAAFlog case page), on Tuesday, December 4, 2018, after the argument in Cooper. The case was remanded to CAAF by the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), which reinterpreted the statute of limitations for the offense of rape of an adult. CAAF will consider two issues involving the application of the new rule in this case:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

The Air Force CCA affirmed the findings and sentence in 2016. The case then became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may properly also serve as an assigned judge of the Court of Military Commission Review. Prior to the Court deciding Ortiz, however, CAAF decided Mangahas.

In Mangahas, CAAF reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult. CAAF had previously held that under the UCMJ, rape qualified as an offense punishable by death and so was exempt from the 5-year statute of limitations in effect prior to a 2006 amendment that extended the statute of limitations for rape indefinitely. But in Mangahas CAAF clarified that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was five years (until it was changed in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

While Mangahas, Collins, and Briggs are all Air Force cases, that is not the only service to use military law to prosecute decades-old allegations of sexual assault. The Army, for example, dismissed such charges against a retired two-star general earlier this year in the wake of Mangahas.

Briggs presents questions that are closely-related to the Mangahas decision: whether the extension of the statute of limitations enacted in 2006 applies to conduct alleged to have occurred before the enactment of the 2006 change, and how to address that issue when the defense fails to raise it at trial.

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CAAF will hear oral argument in the certified Navy case of United States v. Cooper, No. 18-0282/NA (CAAFlog case page), on Tuesday, December 4, 2018, at 9:30 a.m. Four issues related to Cooper’s choice of defense counsel were certified to CAAF:

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?

Persons accused of criminal offenses in the civil courts are generally appointed an attorney to represent them only if they are indigent. Every accused at a court-martial, however, is detailed a military defense counsel free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (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) JB and Lieutenant Commander (LCDR) NG. 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 LT JB and LCDR NG and by nobody else. But Cooper also wanted to be represented by individual military defense counsel (IMC), and on appeal Cooper claimed 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 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.

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CAAF decided the Army case of United States v. Tucker, 78 M.J. __ No. 18-0254/AR (CAAFlog case page) (link to slip op.), on November 29, 2018. In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the Army Court erred in holding that the minimum mens rea required under clauses 1 and 2 of Article 134, UCMJ, to separate wrongful from innocent conduct is simple negligence.

Private (E-1) Tucker pleaded guilty to multiple offenses, including a novel violation of Article 134 based on providing alcohol to a minor. During the plea inquiry Tucker told the military judge that “he did not know—and had no reason to believe—that [the recipient] was under the age of twenty-one.” Slip op. at 3. “The military judge eventually concluded that the mens rea for the charged offense was negligence . . . [and] the military judge accepted Appellant’s plea and entered a finding of guilty for the putative offense of negligently providing alcohol to an underage individual in violation of Article 134, UCMJ.” Slip op. at 3-4.

The Army CCA affirmed Tucker’s conviction in a published decision, concluding that the word neglects in Article 134 states a negligence standard. United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016). CAAF granted review, heard oral argument, and then reversed the CCA with a per curiam decision. United States v. Tucker, 76 M.J. 257, 258 (C.A.A.F. May 23, 2017) (CAAFlog case page). CAAF concluded that “the term ‘neglects’ simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform. . . . [it] has no connection to the mens rea requirement that the government must prove under the statute.” 76 M.J. at 258. Mens rea then became the #8 Military Justice Story of 2017.

On remand the Army CCA again affirmed Tucker’s conviction, with another published decision holding that Tucker’s “admitted mens rea of simple negligence, when combined with the requirement that [his] conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted).

CAAF now reverses that decision too, and it reverses Tucker’s conviction, with Judge Ohlson explaining that “it is inappropriate to infer a negligence mens rea ‘in the absence of a statute or ancient usage.'” Slip op. at 5 (quoting United States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 (1958)).

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