It’s time again for our annual tradition of end-of-term number crunching.

CAAF heard oral argument in 32 cases this term and issued 32 authored opinions of the court.

The court also issued summary dispositions in 67 cases, including 11 cases involving the comments of Marine Corps military judge Lieutenant Colonel Palmer (discussed here) and 16 cases involving the appointment of Mr. Lawrence Soybel to the Air Force Court of Criminal Appeals (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)).

Note: The summary dispositions total does not include Friday, August 29, 2014 (the last business day of the term) because the online version of CAAF’s daily journal hasn’t yet been updated. I will remove this note (and update these numbers if necessary) when the journal is updated.

Of the 32 authored opinions:

  • Judge Stucky wrote 9.
  • Judge Ryan wrote 7.
  • Chief Judge Baker wrote 7.
  • Judge Erdmann wrote 5.
  • Judge Ohlson wrote 4.

Judge Ohlson joined the court mid-term (discussed here), and Senior Judges Effron and Cox both participated in cases argued before Judge Ohlson’s confirmation. Senior Judge Effron participated in 8 cases and Senior Judge Cox participated in 1 case. Neither Senior Judge authored a majority opinion, however Senior Judge Effron did author a dissenting opinion (in Finch).

The service breakdown reveals an astonishing fact: CAAF did not hear oral argument or issue an authored opinion in a single Navy case. Of the 32 oral arguments and authored opinions:

  • Air Force:15 (47%).
  • Army: 14 (44%).
  • Coast Guard: 1 (3%).
  • Marine Corps: 2 (6%).
  • Navy: 0 (0%).

CAAF did issue summary dispositions in 3 Navy cases, deciding all 3 in favor of the Government. Of these 3 summary dispositions, 2 involved administrative issues (correcting the promulgating order in one case (York) and sealing an exhibit in the other (Mora)), and the third (Short) involved a question of the completeness of the record.

The court had a fairly active extraordinary writ docket, with 23 petitions (19 writ-appeals, 2 habeas petitions, and 2 petitions for mandamus). CAAF denied all of these petitions except for one: United States v. Arness, No. No. 14-8014/AF (an Air Force case in which it ordered that briefs be filed (discussed here)).

Calling winners and losers can be tough, but I’m calling 19 (59%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Cimball Sharpton, Danylo, Davis, Finch, Frey, Gutierrez, Hines, Hornback, Jones, Kearns, Leahr, Lee, Mead, Moss, Passut, Payne, Talkington, Treat, and Winckelmann.

Broken down by service, among authored opinions the Government won in:

  • 7 out of 15 Air Force cases (47%)
  • 9 out of 14 Army cases (64%)
  • The single Coast Guard case (100%)
  • Both Marine Corps cases (100%)

Each of the judges sided with the Government (see note below) as follows:

  • Chief Judge Baker: 23 out of 32 (72%)
  • Judge Ryan: 19 out of 32 (59%)
  • Judge Stucky: 17 out of 32 (53%)
  • Judge Erdmann 17 out of 32 (53%)
  • Judge Ohlson 12 out of 23 (52%)
  • Senior Judge Effron: 4 out of 8 (50%)
  • Senior Judge Cox: 0 out of 1 (0%)

Note: These calculations include Judges Ryan and Stucky as siding with the Defense in Treat (CAAFlog case page), and Chief Judge Baker and Senior Judge Effron as siding with the Defense in Moss (CAAFlog case page). That said, Treat could be read as a unanimous win for the Government (as all five judges would have affirmed the conviction), and Moss could be read as a loss for both sides (as even the dissenters didn’t indicate how they would have decided the granted issues).

Compared to last year’s overview, the Government won a greater percentage of cases decided in authored opinions this year (59%) than last year (50%) (last year’s number excludes the 3 ex writ cases). If keeping a case away from CAAF is considered a win for the Government (a fair characterization I think), then the Navy had a perfect record and retained its position as the service that won the most (last year the Navy won 4 out of 5 cases – 80%). In contrast, the Air Force went from the second greatest percentage of wins last year (5 out of 8 – 62.5%) to the service that won the least this year (7 out of 15 – 47%).

This week at SCOTUS: A pro se cert petition was filed in Swiger v. United States, No. 14-6021. CAAF denied review on April 30, 2014, making the petition jurisdictionless. Additionally, last Friday was the extended deadline to file a cert petition in McMurrin v. United States, No. 13A1242.

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 argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 10, 2014.

On 28 August, the Army Court of Criminal Appeals decided an Article 62, adverse to the government in United States v. Muwwakkil.

After the recorded Article 32 in this case was completed, as usual a summary of the complaining witness’s testimony was prepared from the audio recording.  The audio recording was then deleted.  (Practice credit here.  There was a back-up recording being made at the same time. And in fact one of the recorders did malfunction during the hearing.)  They could only recover 52 minutes of the CW’s 2.25 hours of testimony; and it only had the direct testimony, not the all important cross and follow-up.  There was no verbatim transcript made.  (The military judge declined to order production of the defense paralegal’s notes made during the testimony.)

At trial the complaining witness was allowed to testify on direct.  After direct the defense asked the judge to strike the testimony, citing to the Jenck’s Act and R.C.M. 914.

After taking evidence and testimony the military judge agreed with the defense that there was a violation, and to striking all of the testimony – thus this government appeal.  The military judge (note to Air Force, and others) did not find the summary of testimony “substantially verbatim.”  The IO apparently concluded that the CW’s testimony was, “inconsistent with previous statements.”

On appeal, the government agreed that there was a Jenck’s Act violation, but disagreed with the remedy in a situation where, according to the government:

a. There was no showing of gross negligence.

b. There was no prejudice to the defense.

c. And the remedy was “unduly extreme.”

ACCA rehearses the oral findings of fact and conclusions of law made by the military judge.

ACCA and the parties agreed that the issue involves the abuse of discretion standard similar to other suppression issues – thus ACCA’s review was “necessarily deferential” to the military judge’s findings.

ACCA analysis sets out the following: if the loss is due to bad faith or gross negligence – striking of testimony is “mandated.” But otherwise it is discretionary according to a “totality of the circumstances” balanced against any available remedy.  The court also addressed the good faith exception found in other suppression issues.

ACCA finds the military judge’s findings and conclusions of government negligence are “amply supported” and not clearly erroneous.

Ultimately ACCA finds that the government is – my words – “simply” quibbling with the military judge, which is not the standard of review.

My practice note.  I take it the defense was not provided a copy of the audio recording.  I have always made it a practice to ask for a copy of the 32 audio immediately, and generally get that from Navy and Marine 32′s (likely because we usually do the hearings in the court-room, and so it’s easy to make a FTR Gold “readable” copy.  Had the defense been provided a copy of the audio before it was destroyed, there would never be an issue here.  A note for future IO’s and GR’s.  It’s always a good idea to dump a copy of the audio to a CD and give it to the defense before they leave the building.  I don’t believe this is the first time the 32 audio has been lost, it might happen again.

I would expect serious consideration on the part of the government to put this case before CAAF – up periscope.

On a side note, knowing this judge and where the trial was being held, there might be a back-story here if anyone knows it?

The Silver CAAF Tongue Award, while lacking physical manifestation, is a life-changing honor bestowed upon the counsel who argued the most cases at CAAF during the term.

The 2013 Term winner is Major Daniel Breen of the Air Force Appellate Government division, who argued four cases (Elespuru, Janssen, McPherson, and Wilson).

Notably, there is a whopping six-way tie for second place, with each counsel having argued three cases. The counsel (in alphabetical order) are: Captain Brian Andes (Army Appellate Defense), Mr. William Cassara (civilian), Captain Samuel Gabremariam (Army Appellate Government), Captain Daniel Karna (Army Appellate Government), Captain Matthew J. Neil (Air Force Appellate Government), and Captain Thomas Smith (Air Force Appellate Defense).

Past winners can be seen here.

USACIL is the United States Army Criminal Investigation Laboratory. It is part of United States Army Criminal Investigation Command (USACIDC) that reports directly to the Provost Marshal General, Headquarters, Department of the Army. See General Order 22, Oct. 16, 2006

United States v. Katso, __ M.J. __, No. 38005 (A.F. Ct. Crim. App. Apr. 11, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jun. 9, 2014) (CAAFlog case page), is a significant Confrontation Clause decision by the Air Force Court of Criminal Appeals. In Katso a three-judge panel of the court led by Chief Judge Roan found that a surrogate DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellee of his constitutional right to confront the examiner who actually conducted the DNA analysis (but was unexpectedly unavailable for trial due to a family emergency). The CCA then split 2-1 to find that error prejudicial, reversing the convictions for aggravated sexual assault, burglary, and unlawful entry, for which the appellee was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. I analyzed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force certified Katso to CAAF with the following issue:

Whether the Air Force Court Of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless.

The DNA analysis was conducted by USACIL, and CAAF’s daily journal for yesterday reveals that the organization wants to be heard in the case:

INTERLOCUTORY ORDERS

No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted.  The brief of amicus curiae will be filed on or before September 10, 2014.

I think it very interesting that CAAF granted a motion to file an amicus brief from an Army command separate from the Army’s Appellate Government Division.

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Major General Michael Harrison, former Commander of USA Japan, has been retired at one lower paygrade as a result of his mishandling of a sexual assault case, Stars and Stripes report here.  The mishandling arose from a DoD civilian Japanese employee’s report of misconduct by an Army Colonel that was a longtime colleague of the General.  According to S&S:

Harrison referred the case to criminal investigators only after a reporter from Stars and Stripes spoke to the victim and inquired with U.S. Army Japan about the allegations. Previously, the general had ordered only an internal investigation of the allegations, in violation of regulations.

More than two months elapsed between the woman’s allegation of sexual assault and her first contact with Army Criminal Investigation Command, the IG reported.

Additional coverage from Stars and Stripes here and here.

An AP report, here, on the Sgt. Hasan Akbar hearing set for Nov. 18 at CAAF.  CAAF page here.  Prior posts here and here (ACCA Akbar op. from 2012).

CAAF decided the Army case of United States v. MacDonald, No. 14-0001/AR, __ M.J. __ (CAAFlog case page) (link to slip op.) on Wednesday, August 27, 2014. The court unanimously finds that the military judge’s failure to give an involuntary intoxication instruction regarding Appellant’s use of the smoking-cessation drug Chantix was error that was not harmless, reversing the decision of the Army CCA that affirmed Appellant’s conviction for the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept for which, along with, other offenses, Appellant was sentenced to life without the possibility of parole.

Chief Judge Baker writes for the court.

At trial Appellant asserted the defense of lack of mental responsibility, in part because of his use of the drug varenicline (known by the brand name Chantix) to help him quit smoking. Use of Chantix has been associated with homicidal ideations, and part of Appellant’s defense strategy was to claim involuntary intoxication by Chantix as a basis for a lack of mental responsibility. But the military judge quashed a subpoena for records related to Chantix from its manufacturer (Pfizer, Inc.) and also refused to give the members a Defense-requested instruction during the findings phase regarding the defense of involuntary intoxication (though the judge did instruct on the defense of lack of mental responsibility).

The Army CCA affirmed the findings and sentence after determining that quashing the subpoena and failing to give the instruction were errors, but that they were harmless in light of the evidence of Appellant’s ability to appreciate the wrongfulness of his conduct. CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.

II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

The second issue is dispositive to the case and the court does not reach the first issue.

The Chief Judge’s analysis begins by noting that even though involuntary intoxication is not one of the defenses listed in R.C.M. 916, that rule “provides an illustrative rather than an exhaustive list of defenses.” Slip op. at 23-24.  “In [United States v. Hensler, 44 M.J. 184, 187-88 (C.A.A.F. 1996)], this Court recognized involuntary intoxication as an affirmative defense and the Government has not challenged that legal conclusion at trial or on appeal. Rather, the Government challenge has been to the scope of the defense and its factual applicability in this case.” Slip op. at 24.

The Government’s view of involuntary intoxication (discussed the final paragraphs of my argument preview) what that it was “subsumed within the defense of mental responsibility” for which the members were properly instructed. Slip op. at 28. This position is based on the language of Hensler that “involuntary intoxication is treated like legal insanity. It is defined in terms of lack of mental responsibility.” Hensler, 44 M.J. at 188. But Chief Judge Baker’s opinion explains that there is substantial difference between lack of mental responsibility and involuntary intoxication.

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CAAF granted review in two cases on Monday. The court also called upon Senior Judge Cox to sit in place of Judge Ohlson in Newton (Judge Ohlson recused himself from participation in that case – discussed here).

The first new grant is United States v. Bennitt, No. 12-0616/AR. This is the second trip to CAAF for this case. Last term the court reversed the appellant’s conviction for involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the appellant’s barracks room in 2009. United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page). CAAF then remanded the case to the Army CCA for a sentence reassessment, and the CCA affirmed the original sentence. The CCA did so because it was convinced that even without the manslaughter conviction the appellant would have been sentenced to no less than what he received. This prompted me to write a post titled: Bennitt’s sentence remains the same, in which I predicted that CAAF will tell us how the CCA can possibly be convinced of this fact.

And now CAAF will do that:

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.

Briefs will be filed under Rule 25.

The other new grant is in a case involving the ultimate offense doctrine:

No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO OBEY AN ORDER OR REGULATION.

No briefs will be filed under Rule 25.

I’ve been following the revival of the ultimate offense doctrine since last October when I covered the Army CCA’s opinion in United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Sep. 23, 2013) (unpub. op.), rev’d on recon., 73 M.J. 572 (A. Ct. Crim. App. Jan. 31, 2014) (en banc), and rev. granted, __ M.J. __ (C.A.A.F. Jun. 3, 2014) (CAAFlog case page).

Twinam is the third Phillips trailer granted by CAAF (the others are Nemeth and Amaya), definitively creating an ultimate offense doctrine trailer park. And yes, I do get excited about stuff like this.

In United States v. Wilson, No. 20140386 (A. Ct. Crim. App. Aug. 15, 2004) (link to unpub. op.), the Army CCA reverses in part a trial judge’s decision suppressing the accused’s confession and physical evidence seized from his vehicle.

A camera was observed during a safety inspection of the accused’s vehicle by leaders from his command. It was suspected that the camera belonged to the unit and the camera’s serial number was going to be compared against unit records when the accused – who was not advised of his Article 31(b) rights – “stated that the camera belonged to the unit and that he had intended to borrow it for the weekend.” Slip op. at 2. Military police were called and the accused consented to a search of his vehicle, revealing “drug paraphernalia containing marijuana residue.” Slip op. at 3.

The military judge suppressed everything in a five page ruling that the CCA references as an appendix but is not actually attached to the CCA’s opinion. But the CCA reproduces this passage:

The absence of Article 31(b) rights renders the statements given by the accused inadmissible. Since the accused’s statements and verbal acts were obtained based on implicit coercion, the statements are also inadmissible for impeachment purposes. Subsequent evidence obtained, including the camera, lens, [storage device], and paraphernalia, as well as the accused’s written consent to search his POV, are fruit of the poisonous tree and are also inadmissible pursuant to [Mil. R. Evid] 304(a).

Slip op. at 5. The CCA affirms the judge’s suppression of the unwarned statements by the accused but reverses on their inadmissibility for impeachment purposes, finding that the facts “cannot support a necessary conclusion of law that appellee’s statement was involuntary in the sense that it was the product of coercion, unlawful influence, or inducement, which is the prerequisite to precluding use of admissions in impeachment of an accused, notwithstanding failure to advise of Article 31 rights or rights to counsel.” Slip op. at 6. The CCA also reverses the judge’s ruling regarding the search, finding that:

Here, the military judge determined that appellee’s statutory Article 31 rights were violated. The military judge focused solely on unwarned statements by appellee—there were no findings or analysis regarding an illegal search or other constitutional violation. The military judge concluded summarily that: (1) the absence of Article 31 rights warnings made all the appellee’s statements inadmissible; (2) the statements were, therefore, obtained by “implicit coercion;” and (3) all subsequent evidence was “fruit of the poisonous tree” and inadmissible. However, this “fruit” was not from the same tree, nor was it even from the same orchard. More than three hours after the initial questions by SGT WA, appellee voluntarily consented in writing to a search of his vehicle. Because the consent to search was not a “statement” of the accused, the military judge applied the wrong legal principles and abused his discretion when he suppressed the drug paraphernalia discovered during the consent search.

Slip op. at 7 (emphasis in original).

Two months ago, in this post, I noted CAAF’s grant of a marital privilege issue in United States v. Yanez, No. 14-0411/AF. The case involved an assertion that the marital privilege protects the appellant’s possession of sexually explicit images of his own wife (in the  Central Command Area of Responsibility, where possession of such images is prohibited by a general order that the appellant pleaded guilty to violating). The military judge rejected the privilege and the AFCCA affirmed (finding any error to be harmless) in an opinion available here. CAAF granted review to determine whether the judge erred in applying the privilege, and last week the court summarily affirmed the decision of the Air Force court.

A second servicemember will face court martial in the death of PO2 Dmitri Chepusov, S&S reports here. Prior coverage here. Chepusov was an Armed Forces Network reporter and was reportedly killed when Air Force Staff Sgt. Sean Oliver allegedly “beat[] and strangl[ed] Chepusov at the house of another AFN airman in December. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.” Army SPC Cody Kramer is charged with a false official statement as part of a scheme to cover up the alleged murder.

A Sergeant First Class shot herself yesterday after an hour long standoff with police at Ft. Lee in Virginia, reports ABC7News (WJLA) here. The Richmond Times-Dispatch reports, here, that the soldier died from her wounds. No word on whether the soldier had prior mental health issues.

The FayObs reports, here, that convicted Army Captain Jeffrey MacDonald wants the courts to review again his multiple life sentences in light of recently released DOJ OIG report criticizing the FBI for its lackluster response to 1997 allegations of gun-decked lab work by FBI technicians, WaPo report here on the DOJ OIG findings.  The government’s case against MacDonald was built in part on fiber analysis testimony of FBI lab technician Michael Malone, whose work was central in the 1997 report.

The NMCCA recently denied relief in two cases involving assertions of speedy trial violations.

In United States v. Spratling, No. 201400060 (N-M. Ct. Crim. App. Jul. 31, 2014) (link to slip op.), the CCA rejected the appellant’s argument that the Government’s preferral of replacement charges was a subterfuge to deprive him of a speedy trial. The appellant was charged with an indecent act in violation of Article 120 (2006), receipt of child pornography in violation of Article 134, and an indecent act in violation of Article 134. The allegations were all based on the appellant’s interactions with KS, a minor.

The charges were preferred in January 2013, and an Article 32 pretrial investigation was conducted. After the 32, “the Government preferred substantially the same charges” in March, and those charges were referred to trial by general court-martial. Slip op. at 2. The Defense then successfully moved to dismiss the Article 120 offense as an unreasonable multiplication of charges, leaving only the child pornography and indecent act specifications under Article 134. In response, the Government preferred two new charges in June alleging an indecent act in violation of Article 120 and receipt of child pornography in violation of Article 134. These charges were referred to the same general court-martial, and the remaining charges preferred in March were dismissed. This action had the effect of both reinstating the dismissed Article 120 charge and resetting the speedy trial clock.

The appellant was then convicted of both the 120 and 134 offenses, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and sentenced to confinement for 60 days and a bad-conduct discharge. Before trial the appellant moved to dismiss  the charges for violation of his right to a speedy trial, but the military judge denied the motion. The judge “specifically ruled that the trial counsel’s dismissal on 9 July 2013 of the child pornography charge at the direction of the CA, was neither improper nor a subterfuge.” Slip op. at 4.

The appellant renewed this claim on appeal (personally, as a Grostefon matter), but the CCA denied relief by agreeing with the trial judge’s ruling. However, the CCA merely summarily accepts the judge’s conclusion regarding the re-preferral, casting it as a finding of fact that is “clearly supported by the record.” Slip op. at 4. The CCA does not actually discuss the reason why the charges were re-preferred (and it’s not particularly clear why the Government did this, except to usurp the judge’s unreasonable multiplication ruling). Nor does the CCA discuss whether the appellant demanded a new Article 32 each time new charges were preferred, as was his right. See, e.g., United States v. Leahr, 14-0265/CG, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page). See also Article 32(c).

But things are even wilder in United States v. Wilder, No. 201400118 (N-M. Ct. Crim. App. Aug. 12, 2014) (link to slip op.), where the appellant pleaded guilty pursuant to a pretrial agreement that required him “to withdraw his motion to dismiss for a violation of his right to a speedy trial.” Slip op. at 2. The Government “concedes that the condition was impermissible,” but argued that the appellant waived the issue by his unconditional plea of guilty. Id. But in addition to the unconditional plea, the CCA notes that:

In an exhibit entitled, “Sentencing Memo (Continuation of Lance Corporal Wilder’s unsworn statement through counsel),” the civilian defense counsel argued: “The conviction will stick. There were motions pending and waived by this plea that could have resulted in charges being dismissed, perhaps with prejudice. Even if the motions were denied, there would be appellate issues that would have kept this case active for years, perhaps resulting in a retrial. Pleading guilty removed the real possibility charges would be dismissed and removed realistic appellate issues.” Defense Exhibit B at 1.

Slip op. at 4 n.4 (emphasis in original). Despite this, the CCA finds that the appellant did not waive the speedy trial issue, and that he has made a “prima facie showing or a colorable claim that he is entitled to relief.” Slip op. at 5 (quoting United States v. McLaughlin, 50 M.J. 217, 219 (C.A.A.F. 1999)). The CCA then analyzes the issue, beginning with the fact that the appellant was in pretrial confinement for only some, and not all, of the charges, and that he was arraigned twice (initially objecting to joinder).

Separating the earlier charges (arraigned first) from the later charges (arraigned second), the CCA concludes that there was no speedy trial violation under R.C.M. 707, Article 10, or the Sixth Amendment. This conclusion is made possible by the fact that the CCA “hold[s] that R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral,” not the date of imposition of pretrial confinement. Slip op. at 6.

CAAF decided the Air Force case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014. Wilson is a companion case to United States v. McPherson, No. 14-0348/AF & 14-5002/AF, __ M.J. __ (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), and echoes the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. But CAAF finds that Article 12 was not violated in this case because Technical Sergeant Wilson was confined alone. The court answers the certified issue in the negative and affirms the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by all but Chief Judge Baker who dissents with a single sentence that refers to his separate opinion in McPherson.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of violating a lawful order in violation of Article 92 (he was acquitted of numerous other charges). He was sentenced to reduction to E-2, confinement for three months, and a bad-conduct discharge. He served the entire sentence to confinement in a local civilian jail because there was no nearby military confinement facility. Pursuant to a standing policy, the jail segregated Appellee from the other prisoners in order to avoid housing him with foreign nationals. Appellee complained about this segregation in his post-trial submission to the convening authority, and then again to the Air Force CCA where he alleged that being held in isolation at the civilian jail constituted cruel and unusual punishment in violation of Article 55. The CCA rejected Appellee’s claim, finding that TSgt Wilson failed to show that jail officials were deliberately indifferent to his health and safety, and noting: “To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ.” United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012).

CAAF then summarily remanded the case for the CCA to consider whether Article 12 applies, which the court did in a published opinion issued in January, concluding that there is no geographical limitation to Article 12. United States v. Wilson, 73 M.J. 529 A.F. Ct. Crim. App. 2014). The Judge Advocate General of the Air Force then certified the case to CAAF with the exact same issue as the one certified in McPherson:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

But because Appellee never raised an Article 12 claim – he actually specifically rejected it during oral argument at the CCA – he asserted that CAAF lacked jurisdiction to consider the certified issue. Judge Stucky’s majority opinion rejects the assertion, finding that CAAF can consider the certified issue because “there is a justiciable case and controversy . . . [t]he CCA has rendered a “final action” in Appellee’s case . . . the applicability of Article 12 to TSgt Wilson is interwoven with the resolution of his complaints about confinement conditions.” Slip op. at 5. Appellee’s efforts to obtain further review of the actual circumstances of his segregated confinement is also rejected in a short footnote. Slip op. at 2 n.1.

Judge Stucky’s majority opinion is short – just barely over five pages – making it the shortest opinion of the court this term, and it avoids considering whether the segregation of Appellee in order to avoid a violation of Article 12 resulted in a violation of some other legal right. At the CCA, Appellee complained about his segregated confinement as cruel and unusual punishment, in violation of Article 55. The CCA’s analysis of that claim – now dispositive in this case – is somewhat unsatisfying:

The appellant’s claim fails because he has not established that jail officials were deliberately indifferent to his health and safety. To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ. Such routine conditions of administrative segregation do not constitute cruel and unusual punishment under an Eighth Amendment analysis absent deprivation of life’s necessities or infliction of unnecessary pain. Avila, 53 M.J. at 101-02. Although the appellant questions the management decisions of the local jail, his questions are insufficient to show the required culpable state of mind.

United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012). There is a wide range of possible deprivations that a service member might suffer between segregation to prevent commingling and deliberate indifference to health and safety.

In the conclusion of my analysis of McPherson I doubted that CAAF’s decision about the applicability of Article 12 would portend a flood of Article 12 claims. Wilson reinforces that conclusion because the segregation of Appellee from the rest of the jail population avoided the Article 12 issue altogether. But segregation also involves deprivation; of social interaction with other people and potentially of privileges (e.g., Appellee’s segregation meant that he did not have television privileges). The Government may avoid Article 12 claims by segregating military prisoners when they are held in civilian facilities, but it will invite a multitude of claims about the conditions of that segregation.

Case Links (Wilson):
AFCCA opinion (2012)
AFCCA opinion (73 M.J. 529)
Blog post: The back-to-the-future theory of certification?
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. McPherson, No. 14-0348/AF & 14-5002/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but also holding that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF affirms the decision of the Air Force CCA and answers in the negative both the issue certified by the Judge Advocate General of the Air Force and the issue granted on petition of Senior Airman McPherson.

Judge Stucky writes for the court joined by all by Chief Judge Baker, who dissents from the majority’s conclusion about the applicability of Article 12 but concurs with the majority’s requirement for exhaustion of administrative remedies prior to judicial relief.

McPherson and the companion case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, __ M.J. __ (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), are about the application of Article 12 of the UCMJ, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

It is the foreign nationals provision at issue in McPherson, because after McPherson was convicted of numerous offenses at a special court-martial and sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge, he was initially confined at the Elmore County Detention Facility in Idaho (a somewhat-common practice, explicitly permitted by Article 58, used when there is no readily available military confinement facility). He was in that civilian facility for 15 days, and “for eight of those days, he was housed in an open bay with a foreign national known only as ‘The Mexican,’ who was awaiting deportation hearings.” Slip op. at 3-4 (quoting United States v. McPherson, 72 M.J. 862, 869 (A.F. Ct. Crim. App. 2013)). He did not complain about this co-mingling at the time or in his post-trial submissions to the convening authority, however he did raise the issue during the automatic review by the CCA.

The CCA reviewed the issue without specifically addressing the applicability of Article 12. Instead, the CCA determined that there was no excuse for failing to seek administrative relief and declined to provide any judicial relief. But the Government sought en banc reconsideration by the CCA, asserting that “the CCA had ‘implicitly establishe[d] as a matter of law in the Air Force that Article 12 applies to civilian confinement facilities.’” Slip op. at 4 (modification in original). The CCA denied the Government’s motion for reconsideration. The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

CAAF subsequently granted review of a second issue upon petition by McPherson:

There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

This procedural posture establishes the Government as appellee and cross-appellant, and McPherson as appellant and cross-appellee, but I will refer to them as “the Government” and “McPherson” for simplicity.

Judge Stucky’s majority opinion answers both issues in the negative and wholly affirms the opinion of the CCA, explicitly establishing as a matter of law that Article 12 applies to civilian confinement facilities and firmly embracing the requirement that judicial relief for a violation of Article 12 requires that the prisoner first exhaust administrative remedies. While both sides lose in this analysis, I think the greater loss is suffered by the Government.

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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 argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 10, 2014.