Available here in PDF (with some bookmarks).

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

• Larrabee v. United States, No. 18-306 (resp. req. Oct. 3, due Jan. 2)

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

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

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 30, 2019.

Soon we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in a comment to this post or by email to Zack@CAAFlog.com

Yesterday CAAF granted review in this Army case:

No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER AGGRAVATED SEXUAL CONTACT OF A CHILD IS A LESSER INCLUDED OFFENSE OF RAPE OF A CHILD.

Briefs will be filed under Rule 25.

The only opinion available on the Army CCA’s website is this one from 2017, in which the CCA set aside the findings and authorized a rehearing because of a Hills error. That opinion addressed convictions for acts alleged to have occurred in 2010 and 2011. At that time Article 120(b) defined the offense of rape of a child as:

(b) Rape of a Child.-Any person subject to this chapter who-

(1) engages in a sexual act with a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial may direct.

Additionally, Article 120(g) defined the offense of aggravated sexual contact with a child as:

(g) Aggravated Sexual Contact With a Child.-Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.

Sexual act and sexual contact were defined in Article 120(t) as:

(1) Sexual act.-The term “sexual act” means-

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact.-The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

Yesterday, Washington Post reporter Dan Lamothe published this report about the Grazioplene case. It provides a pretty comprehensive overview of situation that we’ve been watching for about 16 months, and begins:

For retired Maj. Gen. James J. Grazioplene, getting arrested and photographed in an orange jumpsuit in Northern Virginia this month was the latest humiliation following a lengthy military investigation in which the Army charged him with rape, only to have the case dismissed on a technicality.

For his daughter and military prosecutors, it was something else: a second chance at seeing whether a court will convict Grazioplene of rape.

Jennifer M. Elmore, 47, said in an interview that she first reported to the Army in 2015 that her estranged father had sexually abused her when she was a child. The service investigated for two years before bringing a case against Grazioplene in April 2017.

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

• Larrabee v. United States, No. 18-306 (resp. req. Oct. 3, due Jan. 2)

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

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

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, December 20, 2018, at 10 a.m.:

United States v. Watkins, No. 2017002

Case summary: A general court-martial composed of members with enlisted representation convicted the appellant, contrary to his pleas, of two specifications of violating a lawful order in violation of Article 92, UCMJ one specification of committing a lewd act upon a child in violation Article 120b, UCMJ; and one specification of obstructing justice in violation of Article 134, UCMJ. The members sentenced the appellant to five years confinement, reduction to paygrade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed.

Issues:
I. Did the military judge err in denying civilian defense counsel’s motion to withdraw as appellant’s counsel?

II. The Sixth Amendment guarantees an accused the right, within limits, to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw from the case citing a perceived conflict, the appellant asked to release his civilian counsel and hire a different one. Did the military judge err by denying this request?

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

A deadline for claims is December 17, 2018.

The Marshall Project recently wrote about the program here.

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

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

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

The report notes:

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

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

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

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

• Larrabee v. United States, No. 18-306 (resp. req. Oct. 3, due Jan. 2)
• Eppes v. United States, No. 18-6531 (pend. denied Dec. 3)

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

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

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

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

United States v. Rogers, No. 1391

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

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

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

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

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

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

Appendix 2 – UCMJ

2019 MCM Supplementary Materials

On Monday CAAF granted review in this Army case:

No. 18-0364/AR. U.S. v. Michael E. Harris. CCA 20170100. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT ERRONEOUSLY AFFIRMED THE MILITARY JUDGE’S DENIAL OF 291 DAYS OF ALLEN CREDIT FOR PRETRIAL CONFINEMENT APPELLANT SERVED IN A CIVILIAN CONFINEMENT FACILITY AWAITING DISPOSITION OF STATE OFFENSES FOR WHICH HE WAS LATER COURT-MARTIALED.

Briefs will be filed under Rule 25.

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

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

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

78 M.J. at 525.

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

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

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

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

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

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

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

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

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

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

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

DONALD J. TRUMP

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

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

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

Please send any feedback to zack@caaflog.com

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

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

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

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

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

Last Thursday CAAF granted review in two cases:

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

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

Briefs will be filed under Rule 25.

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

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

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