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: The next scheduled oral argument at CAAF is on February 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, January 25, 2017, at 1 p.m.:

United States v. Stewart, No. 20160128

Issue: Whether the military judge abused his discretion by denying the defense motion to compel appointment of an expert assistant in eyewitness identification.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Mangahas on Tuesday, January 24, 2017, at 10 a.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here

No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. 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 issues:

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

This is the fourth case before CAAF involving application of Hills (our #3 Military Justice Story of 2016) in judge-alone trials. The other three are Hukill (grant discussed here), Phillips (grant discussed here), and Hazelbower (grant discussed here).

CAAF is also considering a Hills issue in Berger (grant discussed here), however the court ordered no briefs.

CAAF summarily reversed and remanded five Hills trailers last term. None (so far) this term.

After now bouncing around the Mil Jus system for nearly 30 years, the sentence of Private Dwight Loving was today commuted to life without the possibility of parole. See Military Times coverage here. H/t OFL

CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER PUNISHING THE SAME TRANSACTION OF OBTAINING CHILD PORNOGRAPHY WITH FOUR CONVICTIONS UNREASONABLY EXAGGERATES APPELLANT’S CRIMINALITY AND TRIPLES HIS PUNITIVE EXPOSURE, CONSTITUTING AN UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.

The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on  Tuesday, November 15, 2016):

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. 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:

WHETHER THE GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Jan. 3, 2017) (discussed here):

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. 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 issues:

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here. The court applied Hukill and affirmed.

Here is the NYT article on the commutation of Private Manning’s sentence that results in a release date in May of 2017 rather than finishing the remaining 27 or so years and being released in approximately 2045. H/t JK

On Friday the Supreme Court requested a response to the cert. petition in Sterling v. United States, No. 16-814 (CAAFlog case page).

This week at SCOTUS: The Solicitor General received an additional extension of time to file a response to the cert. petition in Howell. Additionally, the cert. petition in Sterling was distributed for conference on Feb. 17, 2017. 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 argument at CAAF is on February 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 25, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 24, 2017.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

CAAF decided the Army case of United States v. Wilson, __ M.J. __, No. 16-0267/AR (CAAFlog case page) (link to slip op.), on Friday, January 13, 2017. Considering an issue raised personally by the appellant, CAAF concludes that a fenced motor pool is not a structure for the purposes of housebreaking in violation of Article 130, 10 U.S.C. § 930. Accordingly, the appellant’s housebreaking conviction is factually insufficient and CAAF reverses the conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Specialist (E-4) Wilson and an accomplice entered the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. They were caught. Wilson pleaded guilty to larceny in violation of Article 121 (for prior thefts) but he contested a charge of housebreaking of the motor pool in violation of Article 130.

The offense of housebreaking requires unlawful entry into a building or structure. The motor pool at issue, however, “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of military property, including vehicles.” Slip op. at 3. The motor pool contains sotrage buildings, but Wilson did not enter any building “nor did he cut any locks, open any doors, or climb through the windows of any building.” Slip op. at 3.

At trial Wilson moved for a finding of not guilty arguing that the motor pool did not qualify as a structure under Article 130. The military judge denied the motion. Wilson renewed his argument on appeal but it was rejected by the Army CCA. CAAF then granted review of a single issue:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

CAAF finds that the military judge did err.

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Announcement posted here.

Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).

A recent published opinion by the Air Force CCA in United States v. Chisum, __ M.J. __, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additionally analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:

in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.

Slip op. at 6 (emphasis added).

Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.

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In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.

That inquiry is now over. Stars and Stripes reports here that:

The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.

“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.

The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.

Today – in an email discussion gone rogue – the question arose of how many people a CAAF opinion affects.

Including only people who are either currently subject to UCMJ jurisdiction or have a real potential to become subject to such jurisdiction (for the sake of simplicity), I put the number at approximately 3.7 million.

Here’s the breakdown:

Note: Retirees is the total on page 27 of the link (2,308,073) less reserve retired (395,808) and survivors (325,889).

For comparison, the 2016 estimated median population of the states (excluding Puerto Rico and the District of Columbia) is 4.5 million.

3.7 million is right between the estimated populations of Connecticut (3.5 million) and Oklahoma (3.9 million).

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

United States v. Price, No. 16-0611/AF (CAAFlog case page): Oral argument audio.

United States v. Shea, No. 16-0530/AF (CAAFlog case page): Oral argument audio.

A reader gave us a heads up about State v. Causbie, 241 Ariz. 173, 384 P.3d 1253 (Ariz. Ct. App. Dec. 5, 2016) (link to slip op.), which involves a vagueness challenge to the Arizona definition of without consent for a sexual offense. The Arizona definition includes when:

(b) The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. For the purposes of this subdivision, “mental defect” means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another.

A.R.S. § 13-1401(A)(7)(b). Causbie was convicted of sexual assault in violation of A.R.S. § 13-1406, which criminalizes sexual intercourse without consent, and the absence of consent was alleged to have been due to intoxication by alcohol. On appeal he asserted that the term consent is unconstitutionally vague and further that the term incapable of consent by reason of . . . alcohol is also unconstitutionally vague.

Rejecting these arguments, the Arizona Court of Appeals gives significant and favorable consideration to the Navy-Marine Corps CCA’s decision in United States v. Solis, 75 M.J. 759 (N.M. Ct. Crim. App. Aug. 11, 2016) (discussed here).

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