Last month the Supreme Court granted certiorari in Gamble v. United States, No. 17-646 (link to docket page). The question presented is:

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

That grant could affect the conviction of Army Master Sergeant Timothy Hennis, who is one of only four current residents on military death row (our #2 Military Justice Story of 2016 ) (the others are Gray, Akbar, and Hasan).

In 2010 a general court-martial convicted Master Sergeant Timothy Hennis (U.S. Army Ret.) of three specifications of premeditated murder and sentenced him to death, our #2 military justice story of 2010. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, in 1985. Hennis was tried three times for those crimes: twice by North Carolina authorities and then finally by a court-martial. The first trial resulted in a conviction and death seantence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989 and Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other active duty retiree – Hennis remained subject to the UCMJ. But advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death.

A reader reports that on July 6, 2018, Senior Airman Andrew Witt was resentenced by a panel of officer and enlisted members to life without the possibility of parole.

Witt’s 2005 conviction of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, earned him a death sentence. The Air Force CCA reversed the sentence – finding that Witt’s defense team was deficient in failing to investigate three areas relevant for sentencing – in United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (noted here). But the Air Force Appellate Government Division sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc) (discussed here). That reversal of fortune was our #7 Military Justice Story of 2014.

CAAF then conducted a mandatory review of the case (because it involved a sentence to death), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration in Witt’s case were disqualified from doing so. CAAF then set aside the CCA’s second decision and reinstated the first decision (that set aside the death sentence), remanding the case for a sentence rehearing. (CAAFlog case page).

This week at SCOTUS: It looks like Acevedo did not file a cert. petition, so I’ve removed the case from my list. I’m not aware of any military justice developments at the Supreme Court, where I’m now tracking just one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2018.

This week at the AFCCA: The Air Force CCA’s website is inaccessible.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF decided the Army case of United States v. Christensen, __ M.J. __, No. No. 17-0604/AR (CAAFlog case page) (link to slip op.), on Tuesday, July 10, 2018. In a narrowly-written opinion, the court distances itself from (but does not overrule) its precedent regarding when a servicemember is discharged from the service and court-martial jurisdiction ends. CAAF concludes that under the specific facts of this case, reason and policy dictate that the appellant was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him. The court reverses the findings and sentence, and the decision of the Army CCA, and dismisses the charges.

Judge Ohlson writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Maggs writes separately, concurring, joined by Judge Ryan.

CAAF granted review of a single issue:

Whether Appellant was subject to court-martial jurisdiction.

In 2014, Private First Class (E-3) Christensen was convicted by a general court-martial of one specification of sexual assault in violation of Article 120 (2012), and sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge.

A year before the trial – in March 2013 – Christensen was pending administrative separation from the Army and “was arrested by civilian authorities for a suspected sexual assault involving another soldier and he was placed in civilian confinement.” Slip op. at 2. While in that civilian confinement, Christensen’s administrative separation was approved by the separation authority, a sergeant “fully cleared [Christensen] from post,” his military identification card was taken from him, and a noncommissioned officer visited him in April and told him “he was ‘out of the Army now’ and wished him good luck.” Slip op. at 2.

That, however, is not enough to discharge a servicemember from the Armed Forces under CAAF’s precedent. Rather, a servicemember is discharged (and court-martial jurisdiction ends) only after three things happen: “(1) the delivery of a discharge certificate (a DD Form 214); (2) a final accounting of pay; and (3) the completion of the clearing process that is required under service regulations.” Slip op. at 7 (citing United States v. Hart, 66 M.J. 273, 276-79 (C.A.A.F. 2008)).

Christensen was cleared, and a DD-214 was mailed to his home (stating his date of discharge as April 17, 2013), but his final accounting of pay was delayed by the chief of justice (senior prosecutor) at Fort Stewart, GA. That military prosecutor:

acted on his own authority and without coordinating with anyone in command. Further, neither he nor the OSJA contacted Appellant to let him know that they were halting his final pay. At the jurisdiction motions hearing, the chief of justice testified that he wanted to have the ability to exercise military jurisdiction over Appellant until he could “confirm that the civilians were going to prosecute this [sexual assault case] in a way that we felt was appropriate.”

Slip op. at 3-4 (marks in original). Judge Ohlson’s majority opinion also observes that:

Despite the actions of the chief of justice beginning in April 2013, it was not until August or September when the brigade commander formally requested a revocation of Appellant’s DD Form 214. Then on September 26, the Government preferred one charge and specification against Appellant. On September 30, the soldier processing center voided Appellant’s DD Form 214 and revoked his discharge. However, it was not until December that anyone from Appellant’s unit notified him that he was still considered a member of the armed forces and that he was going to be court-martialed.

Slip op. at 5. Thereafter Christensen “had difficulty using many of the facilities that would be readily available to active duty soldiers—such as the dining hall—because he was not on the roster of active duty military personnel. He likewise did not have an identification card, assigned quarters, or any of his own uniforms. Moreover, [Christensen] was not paid from April 2013 until January 2014.” Slip op. at 5-6.

Christensen challenged the existence of jurisdiction at trial and also on appeal at the Army CCA, but the challenge was denied on the basis that “there was no final accounting of pay” (as required under CAAF’s precedent, including Hart), and so there was no valid discharge. Slip op. at 6.

CAAF does not disagree with the conclusion that there was no final accounting of pay, but the majority nevertheless finds no jurisdiction to try Christensen by court-martial in 2014 because “to hold otherwise would clearly go against ‘reason or policy.'” Slip op. at 7 (quoting United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015) (CAAFlog case page)).

Judge Maggs’ concurring opinion agrees with the majority’s conclusion that there was no jurisdiction, but it “prioritize[s] statutes and regulations over judge-made law.” Con. op. at 3. Seemingly uncomfortable with the majority’s embrace of a reason or policy exception to the three-part test from Hart, Judge Maggs and Judge Ryan would determine the existence of a jurisdiction-ending discharge by first identifying whether a statute or regulation “specifies when a discharge has occurred,” and if one does then “the Court would simply apply that statute or regulation.” Con. op. at 2. And in this case there is such a regulation: Army Regulation 635-200, “which provides, with certain exceptions not relevant here, that a discharge ‘is effective at 2400 on the date of notice of discharge to the Soldier.'” Con. op. at 2 (quoting AR 635-200 at ¶ 1-29.c).

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Yesterday CAAF granted review in this Army case.

No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. 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 MILITARY JUDGE PLAINLY ERRED BY ALLOWING THE TRIAL COUNSEL TO MISSTATE THE LAW AND ARGUE THAT THE PANEL SHOULD BASE ITS VERDICT ON SHARP TRAINING.

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment/Assault Response and Prevention program.

The CCA’s opinion is available here but it does not address this issue.

CAAF recently posted its oral argument calendar for next term:

June
2019
  • 4
May
2019
  • 7
  • 8
  • 21
  • 22
April
2019
  • 9
  • 10
  • 11
  • 23
  • 24
March
2019
  • 19
  • 20
February
2019
  • 19
  • 20
January
2019
  • 22
  • 23
December
2018
  • 4
  • 5
November
2018
  • 6
  • 7
October
2018
  • 23
  • 24
September
2018
  • 12 (Project Outreach)
  • 13 (Project Outreach)

A note on the calendar explains that the first two hearings “will occur in advance of the formal calendar start of the term, in order to support two Project Outreach commitments by the Court. Future Hearing Notices will provide the details on the venues and times.”

CAAF modified its term to begin on October 1 – rather than September 1 – effective in 2016 (change discussed here).

The 24 scheduled oral argument dates for the 2018 term is a significant reduction from the 30 scheduled dates for the 2017 term (of which only 19 were actually used), and the 27 scheduled dates for the 2016 term (of which only 23 were actually used).

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 completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

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

Tuesday, July 10, 2018, at 10 a.m.:

United States v. Davis, No. 20160069

Issue: WHETHER SPECIFICATION 2 OF CHARGE IV IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE DISPLAYING A VIDEO ON A CELL PHONE SCREEN DOES NOT MEET THE DEFINITION OF “BROADCASTING” UNDER ARTICLE 120(C) UCMJ?

Friday, July 13, 2018, at 10 a.m.:

United States v. Norris, No. 20160262

Issues:
I. WHETHER THE MILITARY JUDGE ERRED UNDER UNITED STATES V. REYNOLDS, 29 M.J. 105 (C.M.A. 1989) BY ALLOWING THE GOVERNMENT TO INTRODUCE EVIDENCE OF UNCHARGED ACTS TO PROVE APPELLANT’S “INTENT TO DOMINATE AND CONTROL” HIS WIFE AND APPELLANT’S “MOTIVE OF HOSTILITY”?

II. WHETHER LYING ON TOP OF ANOTHER IS LEGALLY SUFFICIENT TO CONSTITUTE FORCE FOR A CONVICTION OF FORCIBLE RAPE IN VIOLATION OF ARTICLE 120 (2006)?

Disclosure: I represent Captain Norris in my personal capacity and will present this oral argument.

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 August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: In the wake of its opinion in Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (analyzed here), the Supreme Court denied the petitions in Alexander, Abdirahman, Cash, and Richards (all of which involved Ortiz trailer issues). The Court also denied the petitions in Bales (denial noted here) and Gray (analysis of CAAF’s opinion is here and here).

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF decided the Army case of United States v. Armstrong, __ M.J. __, No. 17-0556/AR (CAAFlog case page) (link to slip op.), on Thursday, June 28, 2018. The court holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery and the decision of the Army CCA.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson writes a separate concurring opinion, joined by Judge Sparks.

Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted Armstrong of assault consummated by a battery as a lesser included offense, and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the convicton was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The charge sheet alleged that Armstrong:

did . . . commit sexual contact upon [Mrs. G.]., to wit: touching through the clothing the genitalia of the said [Mrs. G.], by causing bodily harm to the said [Mrs. G.], to wit: wedging his hands between her thighs.

Slip op. at 2 (quoting charge sheet) (modifications in original). Sexual contact is a legal term of art that encompasses touching “with an intent to abuse, humiliate, or degrade any person,” or “with an intent to arouse or gratify the sexual desire of any person.” Article 120(g)(2)(A) and (B).

In advance of trial Armstrong’s defense counsel requested instructions relevant to a possible lesser included offense of assault consummated by a battery, including “a mistake of fact instruction with regard to battery, the lesser included offense.” Slip op. at 3 (marks omitted) (emphasis added). Despite this and other requested instructions referencing battery as a lesser included offense, CAAF finds that:

Defense counsel, however, never expressly agreed that assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm.

Slip op. at 3. But at trial, when it was time to instruct the members, the prosecution requested that they be instructed that they could convict Armstrong of assault consummated by a battery as a lesser included offense of abusive sexual contact. The military judge asked Armstrong’s defense counsel for their position, to which the defense responded: “Taking no position on it, judge.” Slip op. at 3 (quoting record).

Bad move. That equivocation is why CAAF now affirms Armstrong’s conviction of assault consummated by a battery despite finding that it is not actually a lesser included offense of abusive sexual contact.

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CAAF decided the Army case of United States v. Williams, __ M.J. __, No. 17-0285/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 27, 2018. In this Hills trailer case involving the improper use of charged offenses for propensity purposes, CAAF holds that the Army CCA wrongly held that the circumstances involve an exception to Hills. The court reverses convictions of rape and forcible sodomy, affirms other convictions, and authorizes a rehearing.

Chief Judge Stucky writes for a unanimous court.

In 2013, Sergeant (E-5) Williams was convicted of raping his first wife (Charge I), and forcibly sodomizing and battering his second wife (Charges II and III), by a general court-martial composed of members with enlisted representation. Before trial, the prosecution gave notice of its intent to use the charged sexual offenses against each wife as evidence of Williams’ propensity to commit the charged offenses against the other wife; a tactic that was somewhat common in military practice at the time but that CAAF later held to be improper, in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

Williams’ defense counsel filed a motion to preclude the prosecution from using the charged offenses for propensity purposes. “[T]he military judge questioned the ripeness of the issue, signaled that the proper time to address the issue would be when discussing panel instructions, and did not then explicitly rule on the motion.” Slip op. at 4. At trial, however, the defense did not renew its objection, and a different military judge instructed the panel that it could use the charged rapes (Charge I) as evidence of Williams’ propensity to commit the charged forcible sodomy (Charge II), and also that:

You may also consider the evidence of such other acts of sexual assaults for its tendency, if any, to show the accused’s propensity or predisposition to engage in sexual assault.

Slip op. at 5 (quoting record). Williams was convicted. On appeal the Army CCA affirmed the convictions, concluding that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:

Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

CCA op. at 2 (emphasis in original). Put differently, the CCA concluded that the propensity instruction only allowed the members to use Charge I to prove Charge II, and since Williams was convicted of Charge I first, the facts of that charge were properly used to prove Charge II.

CAAF wholly rejects the CCA’s reasoning in yesterday’s opinion, with Chief Judge Stucky expressing concern that “this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue,” slip op. at 1-2, and that “in the wake of Hills, our lower courts have attempted to impermissibly narrow that holding by carving out exceptions that run contrary to an accused’s presumption of innocence,” slip op. at 6.

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In a federal register notice published today and available here, the Joint Service Committee proposes additional changes to the Manual for Courts-Martial, as amended by Executive Order 13825 (to take effect on January 1, 2019).

Comments are due by August 27, 2018.

The military Benchbook is now available via a web app, at https://www.jagcnet.army.mil/ebb/index.html

To whoever is responsible for this, great job!

This morning the Supreme Court denied certiorari in Bales v. United States, No. 17-1583 (CAAFlog news page).

This week at SCOTUS: The Court issued a decision in Ortiz v. United States on Friday, June 22, 2018 (analyzed here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The Supreme Court decided Ortiz v. United States, 585 U.S. __, No. 16-1423 (link to slip op.), on Friday, June 22, 2018. In a 7-2 decision, the Court affirms the existence of appellate jurisdiction over CAAF and also affirms CAAF’s decision that found no violation in concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR).

Justice Kagan writes for the Court. Justice Thomas writes separately, concurring. Justice Alito dissents, joined by Justice Gorsuch, disagreeing that the Court has appellate jurisdiction over CAAF.

The Military Commissions Act of 2009 established the CMCR as an independent Article I court of record. Judges are appointed to the CMCR by the President, with Senate confirmation. Additionally, the Secretary of Defense may also assign commissioned officers of the armed forces to serve as appellate judges on the CMCR. Ortiz, and a large group of consolidated and trailer cases, involve commissioned officers who were assigned by the Secretary of Defense to the CMCR and then (to avoid a potential constitutional challenge to their CMCR assignments) nominated by the President and confirmed by the Senate, all while simultaneously serving as appellate military judges on CCAs. The court-martial convictions in Ortiz and the others cases were reviewed by CCA panels that included these dual-hatted officers, and the petitioners challenged the judges’ continued service as CCA judges under both the Appointments Clause of the Constitution and also a federal statute – 10 U.S.C. § 973 – that generally prohibits military officers from holding civil office.

CAAF rejected some of the challenges as moot in United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016) (CAAFlog case page), because the CCA decisions were issued before the challenged judges were appointed to the CMCR by the President. But CAAF addressed the substance of the challenges – and rejected them – in United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017) (CAAFlog case page), holding that there was no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case.

Many petitions for certiorari followed, and the Supreme Court granted review in three cases: Dalmazzi v. United States, No. 16-961; Cox, et al., v. United States, No. 16-1017 (the Dalmazzi trailer cases); and Ortiz v. United States, No. 16-1423. Those grants were the #2 Military Justice Story of 2017. The Court also held petitions for certiorari in a large number of Ortiz trailer cases (the largest of which is Abdirahman).

Those grants – and Friday’s decision – are the first plenary review of a court-martial by SCOTUS since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

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