CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.

CAAF reviewed a single issue:

The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial.

The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF’s five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court “deem[s] the totality of the circumstances in this case to be particularly troubling and egregious,” slip op. at 17, and “conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed,” slip op. at 18.

Leading this majority, Judge Ohlson provides a comprehensive review of CAAF’s UCI jurisprudence, meticulously differentiating between “actual unlawful command influence and the appearance of unlawful command influence.” Slip op. at 6 (emphases in original). He explains that:

[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.

Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.

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This week at SCOTUS: The conference on the cert. petition in Sterling was rescheduled. A combined reply brief was filed in Dalmazzi and Cox (available here). The petition for a rehearing was denied in Howell (noted here).

A cert. petition was filed in Ortiz (available here).

An application for an extension of time to file a cert. petition was filed in Bartee v. United States, No. 16A1135. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

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

This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, May 23, 2017, at 9:30 a.m.:

United States v. Chikaka, 16-0586/MC (CAAFlog case page)

Issues:
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 24, 2017, at 12:45 p.m.:

United States v. Close, No. 20140984

Issue: Whether trial defense counsel were ineffective by failing to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residence as an unreasonable search and seizure.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 17, 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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF will hear the final oral argument of the October 2016 term in the Marine Corps case of United States v. Chikaka, No. 16-0586/MC (CAAFlog case page), on Tuesday, May 23, 2017, at 9:30 a.m. The court granted review of two issues, but only the first issue will get the court’s attention (as the second was resolved in favor of the Government in McClour):

I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?

II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Staff Sergeant (E-6) Chikaka was convicted contrary to his pleas of not guilty, by a general composed of members with enlisted representation, of attempted abusive sexual contact (as a lesser-included offense of abusive sexual contact), wrongful sexual contact, abusive sexual contact, nine specifications of violating general orders, four specifications of obstructing justice, one specification of indecent language, and one specification of adultery. The adjudged and initially-approved sentence was confinement for 12 years, reduction to E-1, total forfeitures, and a dishonorable discharge. A second convening authority’s action (after the Navy-Marine Corps CCA found error in the post-trial processing) reduced the confinement to 10 years. The CCA further reduced the sentence to confinement to five years.

Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012. But CAAF’s review will focus on something else that happened that year: a presentation given multiple times by then-Commandant of the Marine Corps General James Amos known as the Heritage Brief.

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Rule for Courts-Martial 306(c)(2) provides that a commander faced with a subordinate’s misconduct may elect to take administrative action against that subordinate. The discussion section to that rule makes clear that administrative separation is one of the adverse administrative actions available to a commander.

A recent report by the Government Accountability Office (GAO), entitled DOD Health – Actions Needed to Ensure Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) Are Considered in Misconduct Separations, posits that servicemembers with mental illnesses may not be receiving fair treatment in misconduct-based discharge proceedings. Then, in an article published by the Military Law Review entitled Justice in Enlisted Administrative Separations, ___ Mil. L. Rev. ____, Vol. 225, Issue 1 (May 2017), Major Latisha Irwin argues that servicemembers accused of sexual offenses are also receiving unfair treatment in discharge proceedings.

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Here is Navy Times coverage of the affidavit submitted by retired Rear Admiral  Patrick J. Lorg in the sexual assault case of Senior Chief Special Warfare Operator (SEAL) Keith Barry.  Here is Zach’s prior coverage from the Washington Times.  Here is a link to the NMCCA opinion in the case. 

CAAF decided the Army case of United States v. Feliciano, __ M.J. __, No. 17-0035/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 17, 2017. Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense. CAAF affirms the decision of the Army CCA and the findings and sentence.

Judge Stucky writes for a unanimous court.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter, heard the female soldier repeatedly say no, and intervened by telling Feliciano: “That if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” Slip op. at 2 (marks omitted). Upon hearing this Feliciano ceased contact with the alleged victim.

CAAF granted review of two issues:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

In today’s opinion, Judge Stucky explains that neither voluntary abandonment nor mistake of fact as to consent were raised by the evidence, and so there was no error in the failure to give the first instruction or in the wording of the second. These conclusions are unsurprising considering the facts. But the opinion also includes a lengthy footnote that distinguishes the uniquely-military special defense from a more-common affirmative defense. Unfortunately, while the distinction in the footnote is clear, the opinion itself seems to blur the line.

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Article 62 authorizes interlocutory appeals by the prosecution in a court-martial in various situations, including of:

An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

Art. 62(a)(1)(B). It’s a relatively new provision in the Code, having been added by the Military Justice Act of 1983, Pub. L. No. 98-209 (with additional grounds for appeal added in 1996).

Rule for Courts-Martial 908 details procedural steps for such an appeal, but it does not define the term (or perhaps terms) substantial proof of a fact material in the proceeding, leaving the matter up to the appellate court acting on the appeal.

The Judge Advocate General of the Army has a problem with that:

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

WHETHER THE TRIAL COUNSEL’S CERTIFICATION THAT EVIDENCE IS “SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING” IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.

I don’t see an opinion on the Army CCA’s website. Update: a reader forwarded the CCA’s order. It’s available here. The order states, in part:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en bane). In contrast, the plain language of Article 62(a)(l), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria. Although Article 62(a)(2), UCMJ, contains similar timeliness and certification requirements to 18 U.S.C. § 3731, these requirements are listed separate and apart from the jurisdictional basis. Essentially, 18 U.S.C. § 3731 vests the determination of the materiality of the excluded evidence solely with the United States attorney; in this important respect, Article 62, UCMJ, is not analogous. When Congress intends to confer the right to appeal based solely on the certification of a specified officer, it is perfectly capable of making that intention clear in statutory language. Compare 18 U.S.C. § 3731, and Article 67(a)(2), UCMJ, with Article 62(a), UCMJ.

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In a story available here Rowan Scarborough reports for the Washington Times that:

Retired Rear Adm. Patrick J. Lorge charges in a May 5 signed affidavit that the then-judge advocate general of the Navy and her deputy tried to persuade him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Mr. Lorge’s career.

. . .

Mr. Lorge said he came to believe that there was insufficient evidence to convict and wanted to overturn the verdict. His staff judge advocate advisers tried to talk him out of it. Failing, they then brought in the Navy’s powerhouse admirals to talk him out of it.

Vice Adm. Nanette DeRenzi, then judge advocate general of the Navy, talked to him in his office.

. . .

He then spoke by telephone with Vice Adm. James Crawford III, then Adm. DeRenzi’s deputy and the current judge advocate general of the Navy.

. . .

“Upon my review of the record of trial from this case, I did not find that the government proved the allegation against Senior Chief Barry beyond a reasonable doubt,” Mr. Lorge wrote. “Absent the pressures described above, I would have disapproved the findings in this case.”

The case is that of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Admiral Lorge approved the findings and sentence, and the NMCCA affirmed in an opinion available here. The CCA’s opinion included this detail:

In relevant part, the convening authority stated:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause[.] The evidence presented at trial and the clemency submitted . . . was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. I encourage the Appellate Court to reconcile the apparent divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66(c), UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.

United States v. Barry, No. 201500064, slip op. at 6-7 n.14 (N.M. Ct. Crim. App. October 31, 2016) (marks in original) (link to slip op.).

Unsurprisingly, last week the Supreme Court denied a petition for rehearing of its denial of certiorari in Howell v. United States, No. 16-536 (CAAFlog case page).

Howell is a long running case that was tried twice. The first time it was reversed by the CCA based on the appearance of unlawful command influence (discussed here) (see also our #4 Military Justice Story of 2014). A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside). Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

CAAF split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute, remanding the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit (opinion analysis here).

Howell then sought certiorari (noted here).

What’s next for this case you might wonder? I’m pretty certain the answer is: Convening authority’s action.

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

This week at CAAF: The next scheduled oral argument at CAAF is on May 23, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 24, 2017.

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

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

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

About 2,800 years ago, Homer described Odysseus’ encounter in Hades with an individual who was a betrayer of divine secrets, cannibal, and kin-slayer, all in one:

I saw also the dreadful fate of Tantalus, who stood in a lake that reached his chin; he was dying to quench his thirst, but could never reach the water, for whenever the poor creature stooped to drink, it dried up and vanished, so that there was nothing but dry ground- parched by the spite of heaven. There were tall trees, moreover, that shed their fruit over his head- pears, pomegranates, apples, sweet figs and juicy olives, but whenever the poor creature stretched out his hand to take some, the wind tossed the branches back again to the clouds.

A few decades ago, in United States v. Pallais, Richard Posner analogized the modern criminal defendant to that wretch, Tantalus:

The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.

Mere days ago, the Harvard Law Review published an article entitled A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (May 1, 2017), by Justin Murray, of the Illinois Attorney General’s Office. Mr. Murray posits that the harmless-error construct, conditioning relief on whether a given error has affected the result of the proceeding under review, is a mistaken approach. He asserts that such an approach fails to vindicate societal needs that are just as important as the truth-finding role that is served by upholding factually “overwhelming” convictions.

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In the Air Force case of United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), CAAF found 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. An extension of time to file a cert. petition in Ortiz was granted until June 9, 2017 (noted here).

Ortiz was a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), also an Air Force case, which raised similar issues, was resolved on mootness grounds and is now the subject of a petition for certiorari (discussed here).

Over the past few days CAAF summarily affirmed 116 cases in light of its decision in Ortiz.

Of those 116 cases, two are from the Air Force and 114 are from the Army.

That’s not all of the trailers, however, as a small number of additional cases raising this issue are still out there (including a few that were argued this term but not yet decided.

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

United States v. Tucker, No. 17-0160/AR (CAAFlog case page): Oral argument audio.

United States v. Darnall, No. 16-0729/NA (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Erikson, __ M.J. __, No. 16-0705/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 9, 2017. CAAF finds that it was not error for the military judge to exclude evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false. Accordingly, the court affirms the summary decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of three issues, all of which were personally asserted by the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Issues II and III are resolved with a footnote to CAAF’s opinion in United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page).

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CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 16-0306/AR (CAAFlog case page) (link to slip op.), on Tuesday, May, 9, 2017. Affirming a published decision of the Army CCA, CAAF finds that if an accused fails to preserve an instructional error with a timely objection or request, then the error is tested for plain error.

Judge Ryan writes for a unanimous court.

In 2013 Private (E-2) Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

On appeal Davis challenged the omission of a mistake instruction. Rejecting the challenge (in an opinion discussed here) the CCA concluded that:

for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. . . . Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

75 M.J. 537, 543-544. This finding of forfeiture was contrary to CAAF’s precedent, and so CAAF granted review to determine:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

Today’s opinion affirms that the CCA got it right, though Judge Ryan lightly scolds the court for intruding on CAAF’s “prerogative to overrule its own decisions.” Slip op. at 5 n.2

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