This week at SCOTUS: The Solicitor General filed a response opposing the cert. petition in Abdirahman, et al. (the Ortiz trailer cases). The SG also received an extension of time to file the requested response in Bartee, to October 30. Finally, the Court will consider the petitions in Dalmazzi, Cox, and Ortiz on Monday. Steve Vladeck – who is counsel of record for all three petitions – published this post on Friday discussing the cases and issues.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 27, 2017, at noon. The argument will occur at the USC Gould School of Law, 699 Exposition Blvd, Los Angeles, California:

United States v. Morales, No. 20150498

Issues:
I. Whether the magistrate had a substantial basis for determining existence of probable cause to believe appellant had committed the crime of indecent viewing?

II. Whether the magistrate’s search authorization was overbroad?

III. Whether a photograph constitutes “digital communication” such that the digital forensic examiner properly reviewed photographs on appellant’s phone?

IV. Whether the military judge abused her discretion by denying the motion to suppress results of the digital forensic examination?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

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 will hear oral argument in one case this week, on Wednesday, September 27, 2017, at 10 a.m.:

United States v. Chamblin, NMCCA No. 201500388

Case Summary: A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of willful dereliction of duty, two specifications of violating a lawful general order, and one specification of wrongfully urinating on deceased enemy combatants in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 (2008). The military judge sentenced the appellant to thirty days’ confinement, sixty days’ restriction, reduction to pay grade E-3, forfeiture of $500 pay per month for six months, and a $2,000 fine. Pursuant to a pretrial agreement, the convening authority disapproved the sixty days’ restriction, $2,000 fine, and reduction below pay grade E-5, suspended execution of confinement and forfeiture of $500 pay beyond one month, and then ordered the sentence executed.

Issues:
I. In light of the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), did the Government violate Staff Sergeant Chamblin’s constitutional right to due process when it failed to provide evidence of unlawful command influence that was favorable and material evidence?

II. Whether the Commandant of the Marine Corps and his subordinate personnel exerted unlawful command influence and/or created the appearance of unlawful command influence over Staff Sergeant Chamblin’s court-martial.

In 1988 Specialist Ronald Gray, U.S. Army, was convicted of the premeditated murder of two women, the attempted premeditated murder of a third woman, three specifications of rape, two specifications of robbery, two specifications of forcible sodomy, and also of burglary and larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation.

The members sentenced Gray to death, a dishonorable discharge, total forfeitures, and reduction to E-1. He is one of only four prisoners on military death row, our #2 Military Justice Story of 2016 (the others are Hennis, Akbar, and Hasan; Witt is pending a sentence rehearing that could return him to death row; Loving’s capital sentence was commuted).

Prior to Gray’s court-martial, in a wholly separate North Carolina proceeding, Gray pleaded guilty to the murder and rape of two additional women, and other offenses, for which he received three consecutive life sentences and five concurrent life sentences.

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Significant MilJus event this week: The 5th Annual Joint Appellate Advocacy Training is this week, Monday, September 18, at 8:00 AM – Wednesday, September 20, 4:30 PM, at Henderson Hall, Rosenthal Theater, Fort Myer-Henderson Hall, 1555 Southgate Road, Arlington VA. More details here.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 27, 2017. The argument will be heard at the University of Southern California Gould School of Law.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 27, 2017.

Law Professor Christian Dahlman, of Lund University, Sweden, recently published an article entitled Unacceptable Generalizations in Arguments on Legal Evidence, Argumentation 31, 83-99 (March 2017), which he hopes “will enhance the clarity” of the evidence assessments made by legal decision makers, and “make them more reasoned.” Id. at 86.

The article starts by explaining that every argument regarding legal evidence comes with an inherent generalization, which may or may not be expressly stated.

Some generalizations are so trivial and uncontroversial that judges and jurors do not even think about them as premises in the argument. Other generalizations are problematic, and there are some arguments that trade on generalizations that are unacceptable.

Id.

Professor Dahlman spends his time exploring four ways that arguments might trade on unacceptable generalizations.

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Here is a link to Army Times coverage of the Harvard Kennedy School disinviting Chelsea Manning from the list of 2018 Fellows after a severe case of public backlash. Here is the school’s statement, which talks about the “extent to which [a Fellow’s] conduct fulfills the values of public service to which we aspire.”

So Chelsea (former Bradley) Manning has a fellowship at Harvard Kennedy School’s Institute of Politics. Release here. Prompting the resignation of at least one other fellow, here. H/t JK

Previously mentioned here, the 5th Annual Joint Appellate Advocacy Training will occur next week, Monday, September 18, at 8:00 AM – Wednesday, September 20, 4:30 PM, at Henderson Hall, Rosenthal Theater, Fort Myer-Henderson Hall, 1555 Southgate Road, Arlington VA 22214.

This training is free, approximately 13 hours of CLE (incl. 1 hour ethics) is anticipated, and no preregistration is required.

The agenda (with lodging information and directions) is available here.

In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), the appellant was charged with wrongful use of ecstasy of divers occasions, but was convicted by exceptions and substitutions of wrongful use on only one occasion. But the members did not specify which occasion formed the basis for the conviction. CAAF determined that this created an ambiguous finding.

The NMCCA faced a similar issue in United States v. Tinsley, No. 201600083 (N-M. Ct. Crim. App. Jul. 6, 2017) (link to slip op.). Sergeant (E-5) Tinsley was charged with numerous offenses including larceny of “33 pieces of working dog gear from the United States on divers occasions between 25 January 2013 and 30 June 2014.” Slip op. at 8. Those items included “two kennels.” Slip op. at 8 n.10. The members, however, convicted Tinsley of larceny of only one kennel, and they didn’t specify which of the two kennels was stolen. So, on appeal:

The appellant argues the members’ substitution of “one kennel” and lack of clarification from the military judge regarding whether he was convicted of stealing the kennel found at his residence or the kennel found in his in-laws’ home violates double jeopardy principles, renders impossible our ability to determine which kennel the appellant was convicted of stealing, and precludes our ability to conduct a factual sufficiency review regarding that specific language in Specification 1 of the Charge.

Slip op. at 8. The majority of a three-judge panel disagrees. Writing for the majority, Chief Judge Glaser-Allen rejects application of Walters (finding that it only applies in cases where divers occasions is narrowed to one occasion) and also finds that:

That the members excepted “two kennels” while substituting “one kennel” is of little concern given the facts of this case and the nature of a general verdict, because the members still convicted the appellant of stealing multiple items on divers occasions (between 25 January 2013 and 30 June 2014) in the specification. An acquittal of an offense is not a general repudiation of all the underlying facts related to that offense. Because we find there was enough evidence to sustain convictions to either kennel, we are unconvinced this case requires “greater specificity in the findings . . . to determine which act survives the verdict for appellate review.” Thus, we are satisfied that jeopardy attached for the entire charged time period and the exception and substitution from “two kennels” to “one kennel” does not render the verdict ambiguous.

Slip op. at 9.

Senior Judge Marks dissents from this part of the decision, and believes that the findings regarding the kennel are ambiguous, because “the distinction between ‘occasion’ or ‘incident’ in Walters and ‘kennel’ in this case is semantics.” Slip op. at 12. Senior Judge Marks would set aside the conviction of larceny of the kennel but otherwise approve the findings and sentence.

I didn’t cover it at the time, but back in March a three-judge panel of the Army CCA published a significant opinion about unsworn statements in United States v. Martinez, 76 M.J. 541 (A. Ct. Crim. App. Mar. 13, 2017), rev. denied. 76 M.J. __ (C.A.A.F. Jun. 22, 2017) (link to slip op.).

Unsworn statements are a unique feature of military law. “The right of an accused to make an unsworn statement is long-standing, predating adoption of the UCMJ. Among other things, the unsworn statement is an opportunity for an accused to bring information to the attention of the members or a military judge, including matters in extenuation, mitigation, and rebuttal, without ordinary evidentiary constraints.” United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005) (citing United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998)).

An unsworn statement, however, “is not evidence.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)). See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (quoting W. Winthrop, Military Law and Precedents at 300 (2d ed.1920 reprint) (It must be remembered that, if an accused elects to make an unsworn statement, he is not offering evidence)); United States v. Briggs, 69 M.J. 648, 651 (A.F. Ct. Crim. App. 2010), rev. denied, 69 M.J. 177 (C.A.A.F. 2010) (“an unsworn statement. . . is not evidence”).

As Winthrop explained:

the statement is not evidence but a personal declaration or defen[s]e, and cannot legally be acted upon as evidence either by the court or reviewing authority. Nor can it be a vehicle of evidence, or properly embrace documents or other writings, or even averments of material facts, which, if duly introduced, would be evidence; and if such are embraced in it, they are no more evidence than any other part.

W. Winthrop, Military Law and Precedents at 300.

In Martinez, the accused pleaded guilty and stipulated to the relevant facts of his offenses. Then:

At the conclusion of the defense’s sentencing case, the defense attorney informed the military judge that appellant would be making an unsworn statement which would come in two parts. One part would be an oral statement from appellant. The other part would be given by counsel. Counsel’s statement, however, consisted of reading a letter from appellant’s pastor into the record.

Slip op. at 2. The prosecution objected to reading the letter as part of the unsworn statement, the military judge sustained the objection, and the Army CCA affirmed.

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This week at SCOTUS: The cert. petitions in Dalmazzi, Cox, and Ortiz were scheduled for conference on September 25. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, September 12, 2017, at 1:30 p.m.:

United States v. Bodoh, No. 20150218

Issues:
I. [Whether t]he military judge abused his discretion by denying the defense motion to dismiss for violation of R.C.M. 707.

II. [Whether t]he military judge erred by instructing the panel that a negligent mens rea was sufficient to make Appellant’s otherwise lawful conduct criminal.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on September 27, 2017.

Back in 2013, in this post, I discussed a pair of Marine Corps cases involving guilty pleas with pretrial agreements that promised deferment and waiver of forfeitures of pay even though the service members’ enlistments were already over (meaning that once they were placed into post-trial confinement there was no pay due to forfeit, and so no forfeitures to defer or waive).

Forfeitures (whether adjudged by a court-martial or imposed automatically under Article 58b) begin 14 days after a court-martial. Deferment postpones them until the convening authority acts. Adjudged forfeitures may then be suspended or disapproved outright, but automatic forfeitures may only be waived for a maximum of six months (and only for the benefit of a service member’s dependents). Six months after a convening authority acts, however, automatic forfeitures (if applicable) must begin. This “reflects congressional concern ‘that some military service members continued to receive active duty pay and allowances while serving extended prison sentences,'” while “[a]t the same time, in recognition of the hardship that mandatory forfeitures might work on dependents, Congress included discretionary authority ‘to provide transitional compensation for the dependents of the accused.'” United States v. Emminizer, 56 M.J. 441, 443 (C.A.A.F. 2002) (marks and citations omitted).

The NMCCA reversed the guilty pleas in those two cases back in 2013 because it found that the forfeiture and waiver provisions were important terms that made the underlying pleas improvident because the appellants’ dependents did not receive any money since the appellants’ enlistments were over (both enlistments ended prior to the pleas, in fact).

Last week the NMCCA reversed yet another guilty plea because of confusion about forfeitures, but this time it’s even worse. Pursuant to a pretrial agreement, the convening authority “waived automatic forfeitures for the remainder of the appellant’s enlistment, which was a period greater than six months.” United States v. Miceli, No. 201700062, slip op. at 2 (N.M. Ct. Crim. App. Aug. 31, 2017) (link to slip op.). But while the military judge failed to catch this forbidden term in the pretrial agreement, the CCA finds that:

The fault does not lie with the military judge alone, however. The record demonstrates that the appellant, the trial defense counsel, the trial counsel, the staff judge advocate, and the CA all failed to recognize the CA’s inability to waive automatic forfeitures for a period extending beyond six months, as set forth in Article 58b, UCMJ.

Slip op. at 4. Actually it’s worse, as the opinion explains that:

After the case was submitted without assignment of error, we specified two issues [related to the waiver term].

Slip op. at 2 (emphasis added). So at least five judge advocates – military judge, SJA to a general court-martial convening authority, trial counsel, defense counsel, and appellate defense counsel – didn’t realize that the pretrial agreement contained, and the convening authority purported to grant, a forbidden waiver of forfeitures in excess of six months. Yikes!

The CCA, however, comes to the rescue. Six months and 23 days after the convening authority took action, the CCA reverses the guilty plea and authorizes a rehearing. And now, since the appellant’s “enlistment is projected to end on 17 March 2018,” Slip op. at 5, a convening authority will have the power to defer and waive forfeitures right up to the end.

In United States v. Bruno, No. 2017-03 (A.F. Ct. Crim. App. Aug. 23, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses a military judge’s ruling suppressing the results of a urinalysis, agreeing with the prosecution that:

Appellee’s second urinalysis was taken in accordance with a standing inspection order issued by the installation commander and minor deviations in the execution of the policy did not mandate suppression.

Slip op. at 2.

The accused – Second Lieutenant (O-1) Bruno – tested positive for methamphetamine on a random urinalysis, and then tested positive a second time on a follow-up urinalysis. The military judge suppressed the results of the second urinalysis after finding that it was the product of an interrogation by AFOSI (that was also suppressed). But the CCA finds that the second urinalysis was the product of a standing order that required follow-up urinalysis any time a member tests positive on a random urinalysis (a Bickel policy, named after United States v. Bickel, 30 M.J. 277, 287 (C.M.A. 1990), in which the court observed that “it was quite rational for Bickel’s company commander to determine whether any member of his unit who had tested positive on one occasion–and so was indicated by the test to be unfit for military duty–had corrected his substandard condition”).

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In United States v. Swift, 76 M.J. 210, (C.A.A.F. Apr. 26, 2017) (CAAFlog case page), a unanimous CAAF found that the Army CCA improperly based its review on uncharged conduct. Writing the court, Judge Ryan explained that:

The CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Article 66(c), and its review was legally infirm.

76 M.J. at 217.

The CCA conducted a new review. United States v. Swift, No. 20100196 (A. Ct. Crim. App. Aug. 29, 2017) (link to slip op.). Finding that the uncharged misconduct was properly admitted under both Mil. R. Evid. 404(b) and Mil. R. Evid. 414 – findings not made in the first decision – the CCA again affirms the findings and sentence.

CAAF granted review in two cases last week.

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Adopting the Army CCA’s tortured reasoning from United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), and ignoring a library of contrary precedent, an unpublished decision by a three-judge panel of the NMCCA agrees that the failure to object to improper closing argument before the military judge begins to instruct the members waives any error.

The government avers that Ahern applies to RULE FOR COURTS-MARTIAL (R.C.M.) 919(c), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), which states, “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” Analyzing R.C.M. 919(c), in light of Ahern, our sister court came to the same conclusion. Finding that the “plain language of the rule, and our superior court’s decision in Ahern” compelled their result, the Army Court of Criminal Appeals held that the failure to object to government counsel’s closing argument constituted waiver, leaving nothing to review on appeal. United States v. Kelly, No. 20150725, 2017 CCA LEXIS 453, at *9 (A. Ct. Crim. App. 5 Jul 2017). We agree. Like MIL. R. EVID. 304, R.C.M. 919(c) provides no provision for plain error review, and therefore, when a defense counsel fails to object to improper argument of government counsel, the defense waives the issue on appeal. We recognize that this conclusion differs from recent cases where CAAF has tested improper arguments for plain error. See, e.g., Pabelona, 76 M.J. at 11 (“Because defense counsel failed to object to the arguments at the time of trial, we review for plain error.”). However, “[t]o the extent we are presented with contrary case law, we follow our superior court’s most recent decision.” Kelly, 2017 CCA LEXIS 453, at *9.

United States v. Motsenbocker, No. 201600285, slip op. at 17-18 (N-M. Ct. Crim. App. Aug 10, 2017) (emphasis added) (link to slip op.). The decision is written by Senior Judge Hutchinson, with Judge Fulton concurring. Senior Judge Campbell dissents, primarily for a different reason but with a comment that suggests dissent on the finding of waiver as well (“even if the appellant waived the improper argument . . . issue as the lead opinion suggests. . .” Slip op. at 40 (emphasis added)).

The notion that CAAF’s opinion in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), surreptitiously overruled its longstanding and unambiguous interpretation of R.C.M. 919(c), is particularly troubling.

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