This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Caldwell. 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 October 11, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 15, 2016.

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.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

Last week, in United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA held that CAAF’s decision in Hills does not apply to a judge-alone trial:

This case is far different than Hills as appellant elected to be tried by a military judge sitting alone. Although the military judge earlier in the proceeding ruled that the government could use propensity evidence in a manner found to be in error in Hills, this ruling became moot by virtue of appellant’s election for a bench trial. We do not share appellant’s concern that his “presumption of innocence” was somehow eroded by the military judge’s consideration of propensity evidence. “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.” United States v. Erickson,” 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

Slip op. at 3.

Thanks to our reader for the tip.

In United States v. Bartee, No. 16-0391/MC (grant discussed here), CAAF is revisiting the improper exclusion of members on the basis of rank (which is not one of the Article 25 criteria for member selection) in the wake of last term’s decisions in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page).

Last week CAAF granted review in another case with an almost identical issue to the one granted in Bartee:

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.

No briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The convening authority in Tso was not the same officer (or command) as the convening authority in Bartee.

Having discovered that General Abrams – the convening authority in the Bergdahl case – failed to review matters submitted by the defense before referring the case for trial by a general court-martial, and also that the General destroyed letters sent to him regarding his referral decision, the defense motion to replace General Abrams as convening authority (previously discussed here) seems to have found some traction.

Stars and Stripes reports here that General Abrams has been ordered to testify by telephone.

Last week CAAF granted review – and specifically invited amicus briefs from the appellate divisions – in an Air Force case that questions whether an appellate military judge may sit on both a Court of Criminal Appeals and the United States Court of Military Commission Review:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

II. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

Briefs will be filed under Rule 25.

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.

Just two years ago, in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF concluded that the appointment of a civilian Air Force employee to the Air Force Court of Criminal Appeals was invalid. Then, in another unanimous opinion issued last year in United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page), CAAF rejected application of the de facto officer doctrine to the appointment.

This week at SCOTUS: As discussed here, a cert. petition was filed in Caldwell v. United States, No. 16-209 (CAAFlog case page). 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 October 11, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Slape, No. 38801, on Thursday, August 25, 2016, at 10 a.m.

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.

In a published opinion in United States v. Banks, __ M.J. __, No. 20130948 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA holds that the Government is responsible for all post-trial delay incurred while waiting for the defense to submit matters to the convening authority, except for the maximum of 20 additional days of delay that may be authorized under Article 60(b)(2).

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), CAAF found that three kinds of post-trial delay are presumptively unreasonable: (1) When the convening authority fails to take action within 120 days of the completion of trial; (2) When the case is not docketed at the CCA within 30 days of the convening authority’s action, and; (3) When the CCA’s decision is rendered more than 18 months after docketing of the case.

The first kinds of delay is at issue in Banks, as the convening authority took action 440 after the completion of trial. 153 of those 440 days, however, were spent waiting for the appellant’s defense counsel to submit matters to the convening authority. Article 60(b)(1) dictates that “such a submission shall be made within 10 days” of the accused receiving the record and staff judge advocate’s recommendation, and Article 60(b)(2) permits an extension of time “for not more than an additional 20 days.” Despite these statutory time limits, Army convening authorities often delay taking action to allow defense counsel additional time.

In Banks, the Army CCA finds “no authority for the government to grant an extension beyond twenty [additional] days.” Slip op. at 4. “Accordingly, we cannot relieve the government of their obligation to comply with Moreno.” Id.

The CCA then concludes that for the purposes of calculating the number of days under Moreno, the initial 10-day period and any excess time counts against the Government, while any extension under Article 60(b)(2) counts against the appellant:

[W]e hold that in calculating compliance with Moreno’s 120-day threshold, when considering submissions under R.C.M. 1105 the only time that may be excluded from the calculation is when the accused has requested (and been granted) a twenty day extension in accordance with Article 60(b). As after the authorized time has expired the convening authority is authorized to take action, any additional time taken by the defense will continue to accrue towards the Moreno 120-day presumption of unreasonableness.

Slip op. at 7.

In United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page), a unanimous CAAF found that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment, rejecting the appellant’s claim that the military judge’s instructions were inadequate based on the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

The appellant has now sought review by SCOTUS. The case is Caldwell v. United States, No. 16-209. The petition for certiorari is available here. The question presented is:

Whether Elonis and its reasoning apply to all similar federal criminal statutes or whether, as the court of appeals here reasoned, Carter v. United States, 530 U.S. 255 (2000), creates a class of “general intent” crimes that fall outside the reach of Elonis and for which proof of negligence is sufficient to convict.

In a published opinion in United States v. Solis, __ M.J. __, No. 201500249 (N.M. Ct. Crim. App. Aug. 11, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects the appellant’s arguments that Article 120(b)(3)(A) – which criminalizes sexual activity with a person who is incapable of consenting due to impairment by an intoxicant – is void for vagueness both facially and as applied.

The decision is reminiscent of the NMCCA’s rejection of similar arguments in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (discussed here). In Torres the CCA concluded that servicemembers have fair notice that they may be prosecuted for initiating sex with an unconscious person.

The CCA reaches a similar conclusion in Solis, with an important caveat. Writing for the panel Judge Fulton explains that:

[T]he statute does not proscribe sexual acts with impaired people, but rather with people incapable of consenting to the conduct at issue because of their impairment—and even then, only when the inability to consent is known, or reasonably should be known, to an accused.

Slip op. at 5 (emphasis added). The quite-obvious conclusion that the statute does not prohibit sex with any impaired person (including, of course, a drunk person) reminds me of the Army CCA’s decision in United States v. Long, 73 M.J. 541 (A. Ct. Crim. App. Jan. 30, 2014) (discussed here) (finding that the drunk victim was competent to consent, but didn’t). And, of course, CAAF’s decision this term in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), provided us with a clear and uniform standard of review for a trial-stage finding that a person was incapable of consenting.

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This week at SCOTUS: The cert petition in Akbar was distributed for conference on September 26. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has announced its oral argument schedule for the October 2016 Term. There are 27 scheduled oral argument dates:

October 2016: 11, 12, 25, 26
November 2016: 1, 2, 15, 16
December 2016: 6, 7
January 2017: 10, 11, 24, 25
February 2017: 7, 8, 28
March 2017: 1, 14, 15
April 2017: 4, 5, 25, 26
May 2017: 9, 10, 23

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Mancini, No. 38783, on Thursday, August 16, 2016, at 10 a.m.

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.

In a motion filed yesterday in the Bergdahl case and available here, Sergeant Bergdahl’s defense team seeks to disqualify General Abrams as convening authority for three reasons.

First, because General Abrams served as the principal military assistant to the Secretary of Defense before his current assignment, and was therefore involved in the Bergdahl search and recovery operations, the Defense asserts that he is a fact witness who cannot also serve as convening authority.

Second, General Abrams apparently did not consider the defense comments to the Article 32 preliminary hearing report. According to the motion:

When interviewed, [General Abrams] claimed that [the defense submission] was written for “the lawyers” and suggested that if the defense wanted him to read the submission, it should be written in “plain-speak.”

Mot. at 7. The defense calls this “preposterous” and asserts that it requires General Abrams’ disqualification and a new referral decision. Mot. at 7.

Finally, the motion asserts that:

GEN Abrams admitted having received over 100 letters about SGT Bergdahl’s case. These were addressed to him and sent through the mail. He said they spanned the full spectrum of opinion, and came from all types of people and on both sides of the case. When defense counsel asked to see the letters, GEN Abrams revealed that he had destroyed them by burning.

Mot. at 7 (emphasis added).

One can only hope that the General was not so reckless as to destroy the only copies of the letters (which, of course, were official records).

The defense also asks that any court-martial be prohibited from adjudging any punishment in the event Bergdahl is convicted. Bergdahl recently also sought this remedy in response to Senator McCain’s comments on his case (discussed here).

CAAF decided the Marine Corps case of United States v. Sterling, __ M.J. __, Nos. 15-0510/MC & 16-0223/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 10, 2016. The court holds that Sterling’s disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority finds that Sterling failed to establish that the order she violated substantially burdened her exercise of religion. Accordingly, CAAF affirms the findings and sentence.

Judge Ryan writes for the court, joined by Chief Judge Erdmann, Judge Stucky, and Senior Judge Cox. Judge Ohlson dissents.

Contrary to her pleas of not guilty, Lance Corporal (E-3) Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She elected to represent herself at trial (though she had the assistance of detailed military defense counsel). She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserted at trial and on appeal that the signs represented the Christian trinity and were posted as an expression of her religious belief.

The Navy-Marine Corps CCA affirmed the findings and sentence after concluding that Sterling’s conduct was not entitled to protection under RFRA. CAAF then granted review of two issues specified by the court, and the Judge Advocate General of the Navy certified two additional issues:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

In yesterday’s decision CAAF concludes: that the order was lawful (answering the second granted issue in the affirmative); that Sterling’s failure to follow the procedures to seek an accommodation is relevant (answering the first certified issue in the affirmative); that Sterling did not waive or forfeit her claim under RFRA (answering the second certified issue in the negative), and; that Sterling failed to establish the facts necessary to prevail on a RFRA claim (answering the first granted issue in the negative).

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Today CAAF decided the final argued case of the September 2015 Term: United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page). The opinion is available here. Also available here (CAAFlog link).

Judge Ryan writes for the court, joined by Chief Judge Erdmann, Judge Stucky, and Senior Judge Cox. Judge Ohlson dissents.

Writing for the court, Judge Ryan holds that:

We hold that the orders to remove the signs were lawful. Appellant’s claimed defense to violating those orders under RFRA was preserved, but Appellant has failed to establish a prima facie RFRA case. Moreover, we hold that her failure to either inform her command that the posting of the signs was religiously motivated or seek an accommodation are both relevant to Appellant’s failure to establish that the orders to remove the signs constituted a substantial burden on her exercise of religion. Consequently, while the NMCCA’s RFRA analysis was flawed, we affirm the decision on other grounds.

Slip op. at 4.

Judge Ohlson’s dissent begins:

In my view, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–2000bb-4 (2012), provides the men and women of our nation’s armed forces with the presumptive right to fully, openly, and spontaneously engage in religious exercise. This right extends to sincere religious conduct that is not specifically required by, or deemed by judges to be important to, the tenets of a servicemember’s faith. Further, servicemembers who are court-martialed for sincere religious conduct may invoke the protections afforded by RFRA even if they did not obtain the permission of the Government before engaging in that conduct, and even if they did not contemporaneously inform their chain-of-command that their actions were religious in nature.

I conclude that the majority’s disposition of the instant case is not consistent with these rights under RFRA. Moreover, I conclude that the majority’s analysis of the underlying legal issue raises the prospect that other servicemembers in the future may be subjected to conviction at court-martial for merely engaging in religious exercise that is entitled to protection under the statute. Therefore, I must respectfully dissent.

Diss.  op. at 1.

Further analysis to follow.

In the wake of its blockbuster decision in United States v. Hills, __ M.J. __ (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF this week summarily remanded three other cases in which it granted review of issues involving the use of propensity evidence in sex cases:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

The grant in Moynihan was noted here. The grant in Tafoya was noted here. The grant in Williams was noted here.

Still remaining on CAAF’s docket is the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (certification noted here) (CCA’s decision discussed here).  Fetrow involves propensity evidence used in a child sex case (Mil. R. Evid. 414) that the CCA found was not eligible for use under the rule.

In an amicus brief filed at the same time as the Government’s response to the petition for certiorari in Akbar (CAAFlog case page),  University of Virginia School of Law professor Aditya Bamzai asserts that:

Marbury [v. Madison, 5 U.S. (1 Cranch) 137 (1803)] bars the Court from hearing this case. The provision that petitioner invokes (see Pet. 1) to establish certiorari jurisdiction, 28 U.S.C. § 1259, violates Article III, section 2, and Marbury’s holding by authorizing this Court to issue writs directly to executive branch officers.

Br. at 2.

The brief is available here.