This week at SCOTUS: The solicitor general waived the right to respond to the cert. petition in Eppes. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 4, 2018.

This week at the ACCA: The Army CCA, sitting en banc, will hear oral argument in one case this week, on Tuesday, November 13, 2018, at 2 p.m.:

United States v. Kelly, 20150725

Issue: What is the scope of this Court’s review given the remand from the Court of Appeal for the Armed Forces?

Disclosure: I represent the appellant in my civilian capacity and will argue this case.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 28, 2018.

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’s website shows no scheduled oral arguments.

The Air Force Judge Advocate General’s School’s quarterly publication, The Reporter, has a new digital face, a new online home, and a new blog-like format. (Previous versions can still be found on the AFJAGS website here and here.)

Recent articles posted to the new site cover topics as varied as an assessment of recent efforts to provide law of war and human rights training to the Columbian military, to a practical guide to sentence rehearing proceedings.

An article from that publication, by Air Force Major R. Scott Adams, recently caught my eye: The Court-Martial of Private Vasily Shabunin: An Obscure Trial and its Lasting Impact on Novelist Leo Tolstoy. 

Major Adams’ article contains a detailed account of famed author Leo Tolstoy’s experience as a defense counsel representing a young Army Private who was ultimately executed for striking his Captain.  The article also notes that Tolstoy once, while weeping, said:

[The experience with Shabunin] had much more influence [on me] than all the seemingly more important events of life; the loss of or recovery of wealth, successes or failures in literature, even the loss of people close to me.

Read more »

Back in July the Air Force CCA issued a decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), in which it reversed a 2017 conviction for a rape alleged to have occurred in 2000.

The CCA took that action because in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

In Collins the CCA observed that:

In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016.

78 M.J. at 534. Furthermore, the CCA noted that even if the extension of the statute of limitations enacted by Congress in 2006 were retroactive, the ex post facto clause prohibits applying the extension in Collins because the time period under the pre-extension statute of limitations (as interpreted by Mangahas) expired before the extension.

On Monday the Air Force JAG certified the case to CAAF:

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, DID NOT APPLY TO APPELLEE’S 2000 RAPE OFFENSE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLEE COULD SUCCESSFULLY RAISE THE STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INFORM APPELLEE HE COULD RAISE THE STATUTE OF LIMITATIONS AS A BAR TO TRIAL.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 5th day of December, 2018.

CAAF is considering similar issues in United States v. Briggs, No. 16-0711/AF (CAAFlog case page). The oral argument in Briggs is scheduled for December 4, 2018.

With a published opinion captioned In re: Vance, __ M.J. __, No. 20180011 (A. Ct. Crim. App. Nov. 5, 2018) (link to slip op.), a three-judge panel of the Army CCA issues a writ of mandamus “directing the convening authority to take action on this case in the manner required under Article 60, UCMJ” – meaning to approve the findings and sentence of a general court-martial. Slip op. at 9.

Captain Vance was accused of misuse of his government travel card and of unauthorized absences in 2016 and 2017. He submitted a request to resign in lieu of court-martial. Soon afterward, he submitted an offer to plead guilty at a general court-martial. The plea offer was accepted by the convening authority and Vance pleaded guilty in January 2018 and was sentenced to a dismissal and forfeiture of $1,000 pay per month for three months. Then, in March 2018, Vance’s resignation request was accepted by the Deputy Assistant Secretary of the Army. “The Secretary’s designee issued a directive that CPT Vance be administratively discharged with an Under Other Than Honorable Conditions characterization of service and, as to the court-martial, ‘both findings and sentence, if any, be vacated.'” Slip op. at 2.

Can’t do that.

The current version of Article 60 – as amended by the 2013 changes to the UCMJ – prohibits a convening authority from disapproving a finding of guilty except in cases involving only minor offenses or in cases involving an offense committed before June 24, 2014. Neither exception applies to Vance’s general court-martial conviction. Nevertheless, the convening authority (as instructed by the Deputy Assistant Secretary of the Army) disapproved the findings in Vance’s case.

The CCA finds that action to be void:

The convening authority’s action complied . . . was prohibited by the amendments to Article 60, UCMJ. The convening authority was prohibited from setting aside any finding. The convening authority was also prohibited from setting aside the dismissal. Accordingly, we reach the same result as we did in Alvin, and determine that the convening authority’s action was void ab initio.

Slip op. at 5. Writing for the panel, Judge Wolfe further explains:

As we see it, according to Congress’s amendment to Article 60, UCMJ, the convening authority’s only authorized action was to approve the findings and the dismissal. If the convening authority could not change the sentence, under the statutory scheme that results, review by this Court was mandatory once the sentence was determined by the court-martial. Put differently, our mandatory review under Article 66(c), UCMJ, was triggered by the sentence to a dismissal, which the convening authority was prohibited from changing.

Slip op. at 6.

Read more »

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

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page): Oral argument audio

United States v. Nicola, No. 18-0247/AR (CAAFlog case page): Oral argument audio

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

United States v. King, No. 18-0288/AF (CAAFlog case page): Oral argument audio

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page): Oral argument audio

Significant military justice event this week: The LexisNexis CLE on recent reforms to the UCMJ is on Tuesday, November 6, 2018, at The National Press Club in Washington D.C. Additional details available here. Note: Event open to DoD-affiliated persons only.

This week at SCOTUS: The cert. petition in Andrews was denied on October 29. An amicus brief (available here) in support of the cert. petition in Dinger was filed by the National Institute of Military Justice and the Amicus Project at Southwestern Law School.

The Court docketed a pro se, cert. petition (available here) that was filed back in August in Eppes v. United States, No. 18-6531. In United States v. Eppes, 77 M.J. 339 (C.A.A.F. Apr. 10, 2018) (CAAFlog case page), CAAF affirmed conditional pleas of guilty, unanimously concluding that one challenged search was proper, and concluding by a majority that a second challenged search was technically problematic but its fruits ultimately admissible.

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

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, November 6, 2018, at 9:30 a.m.:

United States v. King, No. 18-0288/AF (CAAFlog case page)

Issue: The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

Case Links:
AFCCA decision
Appellant’s brief
Appellee’s (Air Force App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page)

Issue: Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, November 7, 2018, at 9 a.m.:

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page)

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

Case Links:
ACCA decision
Blog post: CAAF grant
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Nicola, No. 18-0247/AR (CAAFlog case page)

Issue: Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 28, 2018.

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’s website shows no scheduled oral arguments.

CAAF will hear oral argument in the Army case of United States v. Nicola, No. 18-0247/AR (CAAFlog case page), on Wednesday, November 7, 2018, after the argument in Bodoh. The court will determine:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute also defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a junior female soldier – identified as Corporal (CPL) AA – during a night of drinking with other soldiers both on and off post. CPL AA overconsumed and Nicola took her back to her barracks room, where her next memory was sitting naked on the floor of her shower with the water running. She also accused Nicola of committing a sexual act upon her in the shower, but he was acquitted of that.

Nicola testified in his own defense at trial and said that after he brought CPL AA back to her room, he told her to take a shower to help her sober up. He said that she then spontaneously removed her clothes and he saw her in her bra before he could look away. She then went into the shower where she remained for a long time, and Nicola admitted to checking on her at one point (after she didn’t respond when he shouted to her) during which he saw her naked. The prosecution argued that Nicola committed an indecent viewing when he saw CPL AA in her bra as she disrobed and then again when he saw her naked in the shower.

Nicola’s appeal doesn’t challenge that he viewed CPL AA’s private areas, but rather that her “reasonable expectation of privacy was relinquished by taking her own clothes off in front of another person, or superseded by placing herself in harm’s way when she was unresponsive in the shower.” App. Br. at 7.

Read more »

CAAF decided the Army case of United States v. Eugene, 78 M.J. __, No. 18-0209/AR (CAAFlog case page) (link to slip op.), on Monday, October 29, 2018. With a short opinion, CAAF holds that the question of whether an accused revoked consent to a search is a question of fact, not a question of law. Then, considering the deference generally afforded to a military judge’s factual findings, CAAF finds no error in the military judge’s finding that Eugene did not revoke the consent his wife gave to law enforcement to search Eugene’s phone. CAAF affirms the findings, sentence, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

CAAF answers the first issue in the negative and does not reach the second issue.

Read more »

LexisNexis is hosting a free CLE for military justice practitioners next Tuesday, November 6, 2018, at The National Press Club in Washington D.C.:

The Reform to the UCMJ: Challenges and Opportunities

LexisNexis® is excited to host this year’s Military Justice Symposium, focusing on the new challenges and mandates that affect all service branches. Professor David A. Schlueter will provide a CLE accreditation, followed by two breakout sessions focused on prosecution and defense. Discussion and participation are encouraged throughout the event.

Agenda:
8:30 – 9 A.M.—Registration and Networking
Opening Remarks: Army JAG (Ret.) Col Kermit Lowery, LexisNexis VP & Lead Customer
Solutions Counsel

9 – 10:30 A.M.—CLE: Reform to the UCMJ: Challenges and Opportunities
Speaker: Professor David A. Schlueter

10:30 – 10:45 A.M.—CLE Session Q&A

10:45 – 11:30 A.M.—Second Session Topic: Don’t Panic: The Military Justice Act is natural growth, not radical change.
Speaker: Zachary Spilman, Esq.

11:30 – 11:45 A.M.—Networking Break

11:45 A.M. – 12:45 P.M.—Breakout Sessions
Session 1: Prosecution
Session 2: Defense

12:45 – 1 P.M.—Closing Remarks

You can register at LexisNexis.com/MilitaryJustice2018

CAAF will hear oral argument in the Army case of United States v. Bodoh, No. 18-0201/AR (CAAFlog case page), on Wednesday, November 7, 2018, at 9 a.m. (earlier than the normal 9:30). The court granted review of a single 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

Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.

Bodoh’s convictions involve sexual acts with the civilian wife of another soldier, at the home of the other soldier, while all three of them (plus a fourth person) abused alcohol and cold medicine. During voir dire the prosecution asked the members questions that referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The questions involved the effect of the SHARP program and whether the members could be impartial despite receiving SHARP program training. The voir dire questions did not draw an objection, a comment from the military judge, or a challenge to any member.

Bodoh testified in his own defense. He admitted that sexual acts occurred, but he claimed that they were consensual. During pretrial questioning by law enforcement, however, Bodoh did not admit to the sexual acts, and at trial his defense counsel asked him to explain that earlier omission. Bodoh responded that he was “very frightened when they told me that [the alleged victim] pulled the SHARP defense.” Gov’t Div. Br. at 13 (quoting record).

Once Bodoh mentioned the SHARP program, the prosecution ran with it. On cross-examination the trial counsel asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training he had received, eventually drawing objections from the defense that the military judge sustained. Later, during closing arguments, the trial counsel repeatedly referenced the SHARP program when arguing that there was no consent, that the alleged victim was vulnerable and incapable of consenting (due to the alcohol and cold medicine), and that her behavior during and after the sexual acts did not support Bodoh’s claim of consent. In particular, the trial counsel argued that the SHARP program demonstrated that the defense theory of consent was based on myths:

Also she’s fearful with everything he’s done and never having any consequences, never anyone doing anything to him, no one, the command, no one doing anything to him. She simply didn’t fight back. She froze. Everyone would wish she would have fought back. Everyone would wish she would have yelled and screamed. And those myths that [defense counsel] said aren’t that common anymore, that’s all that [defense counsel] cross examined her on. That’s all your Soldiers learn in the SHARP program every day about those myths. It’s not that common.

Appp. Br. at 10-11 (quoting record). Bodoh’s defense counsel did not object.

Read more »

CAAF will hear oral argument in the Army case of United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page), on Tuesday, November 6, 2018, after the oral argument in King. A single granted issue questions whether the general prohibition in Mil. R. Evid. 707 against evidence of polygraph examinations applies to a defense request to introduce into evidence the fact that a confession was preceded by a polygraph:

Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Specialist (E-4) Kohlbek was tried by a general court-martial composed of a military judge alone. He pleaded guilty to three specifications of assault consummated by a battery upon a child under sixteen years old, in violation of Article 128, as lesser included offenses of sexual abuse of a child in violation of Article 120b. The prosecution then proceeded to trial on the greater offenses, resulting in Kohlbek’s conviction of four specifications of sexual abuse of a child. The military judge sentenced Kohlbek to confinement for 15 months, reduction to E-3, and a bad-conduct discharge.

Kohlbek’s convictions related to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and spent a night at Kohlbek’s home. While she was there, Kohlbek over-consumed alcoholic beverages while celebrating his recent graduation from the Army’s Warrior Leader Course. Then, while AH slept, Kohlbek entered the room and sexually touched her. She immediately reported the incident and military police apprehended Kohlbek. A breathlyzer administered later the next morning showed Kohlbek’s blood alcohol concentration as .165 and .163.

Kohlbek did not deny wrongdoing (rather, he pleaded guilty to assaulting the girl), but he did claim no memory of the incident. In turn, Kohlbek’s defense counsel asserted that Kohlbek’s degree of intoxication prevented him from forming the specific intent required for the charged sexual offense. But the defense had a problem: Kohlbek confessed.

Specifically, Kohlbek agreed to be questioned by military investigators and he agreed to take a polygraph examination. A polygraph machine measures physiological responses (like blood pressure, heart rate, and breathing) during questioning, under the theory that such things have something to do with the truthfulness of the responses to the questions. Kohlbak submitted to a polygraph and was (quite predictably) told that he failed. Then, during post-polygraph questioning by law enforcement, Kohlbek said:

Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just let me get out of here.” (JA 86).

Gov’t Div. Br. at 5. His confession followed.

Read more »

CAAF will hear oral argument in the Air Force case of United States v. King, No. 18-0288/AF (CAAFlog case page), on Tuesday, November 6, 2018, at 9:30 a.m. A single granted issue challenges the sufficiency of the evidence to prove that King wrongfully viewed child pornography:

The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

Unallocated space is a computer storage term that refers to unused space on the storage device (hard drive, thumb drive, etc.). Though unused, the space can nevertheless contain data. Deleted items, for example, are in unallocated space (because the process of deleting a file is more synonymous with forgetting than with removing).

A cache is a storage area for data. Applications (like web browsers) often use cache files to speed up the browsing process. A cache is created on a user’s device when a user accesses data that is stored somewhere else. When the user wants to access the data again, some of the content is provided by the local cache (rather than re-downloaded from the remote site).

Contrary to his pleas of not guilty, Airman First Class (E-3) King was convicted by a general court-martial composed of a military judge alone of one specification of attempting to view child pornography, one specification of viewing child pornography, and one specification of violating a general regulation. He was sentenced to confinement for nine months, reduction to E-1, and a dishonorable discharge. The Air Force CCA summarily affirmed the convictions.

The prosecution of King began when Photobucket – an image-sharing website – notified authorities of a suspected image of child pornography uploaded to the service by an account linked to King’s military email address. King was questioned by Air Force criminal investigators, and he seemingly confessed to searching for and viewing child pornography on his government computer.

But King’s primary brief doesn’t address that apparent confession, and it offers only a passing reference to his statements to investigators. See App. Br. at 37. Instead, King’s brief focuses on the fact that of the images introduced into evidence by the prosecution, the military judge found that only three were actually child pornography. All three were found on King’s personal computer; two in a Google cache and one in unallocated space. The military judge convicted King of wrongfully viewing those three images of child pornography.

The granted issue and King’s brief question whether that conviction can be sustained based only on the images found in the cache and unallocated space. It’s a good question. But CAAF is almost certainly going to be more interested in King’s admissions to military investigators, whether those admissions amount to a confession to wrongfully viewing child pornography, and whether the images (or something else) provide adequate corroboration.

Read more »

Registration for the 2018 Jobs for JAGs program, sponsored by the Judge Advocates Association, is now open.

Visit http://jaa.org/ and click on the picture gallery near the middle of the page to get to the registration form.

The registration fee is $50. That will get you:

  • Opening remarks
  • Federal job search panel
  • Resumes and interviewing for success
  • Catered box lunch at Jenner & Block
  • Lunchtime keynote speaker: Maj. Gen. (USA, Ret.) William “Bill” Suter – retired Army Deputy Judge Advocate General and retired Clerk of the United States Supreme Court
  • Job hunting for law firm positions
  • Corporate counsel job searches

This week at SCOTUS: The cert. petition in Dinger was scheduled for conference. The Solicitor General received an extension of time to file the requested response to the petition Larrabee. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on November 6, 2018.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 28, 2018.

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’s website shows no scheduled oral arguments.