CAAF decided the Army case of United States v. Ahern, __ M.J. __, No. 17-0032/AR (CAAFlog case page) (link to slip op.), on Thursday, April 20, 2017. The court finds that when the appellant’s civilian defense counsel (who is not named in the opinion) affirmatively stated that the defense had no objection to admission of appellant’s statements, that extinguished appellant’s right to complain on appeal about the admission of the statements.

Judge Ryan writes for a unanimous court.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal. The Army CCA affirmed the findings and the sentence.

Ahern’s “convictions are all related to his sexual abuse of his stepdaughter.” Slip op. at 2. Pretext phone calls were conducted during the investigation of the offense, during which Ahern did not directly deny the allegations. He also did not deny the allegations in pretext text messages. The defense moved to admit the text messages while the prosecution moved to admit the phone calls, and the defense had no objection to admission of the phone calls:

[MJ]: Okay. Very well.
And if I believe according to the Court’s notes, those would be the government Motion in Limine to Admit the Pretext Telephone Calls, which has been marked as Appellate Exhibit VII. I received no defense response to that motion. Defense counsel, you are not contesting that motion.
Is that correct?

[CDC]: Correct, Your Honor.

(Brackets in original.) Later, the Government admitted the phone call into evidence, and the following exchange took place:

[ATC]: Your Honor, the government moves to admit Prosecution Exhibit 3 for identification into evidence.

MJ: Objections, defense?

[CDC]: No objections.

Slip op. at 3-4 (marks in original). Then, “during closing argument, trial counsel argued that [Ahern’s] failure to deny the accusations made in the text messages and phone calls was evidence of his guilt.” Slip op. at 4. The defense did not object, however on appeal Ahern asserted that the closing argument was prohibited by Mil. R. Evid. 304(a)(2). That Rule states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

The Army CCA made a first-impression interpretation of the Rule in a decision discussed here, and concluded that the Rule is triggered when an accused is aware of the investigation (determined by an objective test). CAAF then granted review to decide:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

But in today’s opinion Judge Ryan doesn’t answer the granted issue because “Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.” Slip op. at 9.

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We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

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Users may have noticed a site outage this morning. The cause was a faulty piece of hardware (a switch). It’s been repaired.

In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.

The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.

There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.

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While the court decided the case on February 9, 2017 (two days after hearing oral argument), CAAF issued its opinion in the Air Force case of United States v. Ortiz, __ M.J. __, No. 16-0671/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Avoiding answering more than necessary to decide the case, CAAF finds 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. Ortiz is a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which raised similar issues, was resolved on mootness grounds, and is now the subject of a petition for certiorari (discussed here).

Judge Stucky writes for a unanimous court.

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CAAF decided the certified Air Force case of United States v. Fetrow, __ M.J. __, No. 16-0500/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Reviewing the Air Force CCA’s determination of when evidence of uncharged alleged child molestation is admissible under Mil. R. Evid. 414, CAAF agrees with the CCA’s determination that such evidence must (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. CAAF affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

Judge Sparks writes for a unanimous court.

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This week at SCOTUS: The Solicitor General filed a brief in opposition to the cert. petition in Sterling. The brief is available here. 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 arguments at CAAF are on April 25, 2017.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Anderson, No. 2016-17, on Tuesday, April 18, 2017, at 2 p.m. According to the CCA’s website, “this argument will be closed and not open for public viewing.” The case number indicates that this is either an interlocutory appeal or a petition for extraordinary relief (possibly a petition by an alleged victim under Article 6b).

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 May 2, 2017.

Audio of the April 5 and 6 oral arguments at the Navy-Marine Corps CCA is available at the following links:

United States v. Hale, No. 201600015: Oral argument audio

United States v. Harris, No. 201600207: Oral argument audio

Earlier this week the Department of Justice issued a notice in the Federal Register asking the public to submit proposals to:

(1) Improve the underlying science and validity of forensic evidence; (2) improve the operational management systems of forensic science service providers; and (3) improve the understanding of forensic science by legal practitioners.

Notice of Public Comment Period on Advancing Forensic Science, 82 Fed. Reg. § 17879 (April 13, 2017).

The notice explains that public comment is necessary now because the 2-year charter for National Commission on Forensic Science (NCFS), which is a Federal Advisory Committee like the military justice system’s Judicial Proceedings Panel (CAAFlog page), is about to expire.  The Department specified: “Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc.” Id. at § 17880.

Media response to the DOJ’s notice has been inaccurate and, at times, shrill. The Washington Post, reading an advance copy of the Notice, interpreted that the Attorney General had already decided not to renew the NCFS. Meanwhile, in a feature article, Rolling Stone lamented, “Jeff Sessions is Keeping Junk Science in America’s Courts” and “Trump’s attorney general is a threat to the rule of law he’s tasked with upholding[.]”

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According to various news reports, Marine Major Mark Thompson (CAAFlog news page) received a sentence of confinement for 90 days and a dismissal after pleading guilty yesterday at a general court-martial to making false official statements and conduct unbecoming an officer and a gentleman.

This report published by military.com explains that:

Thompson’s sexual misconduct began in 2011, when he drank, played strip poker and had a threesome with one of the midshipmen and a fellow Marine officer.

He admitted to lying to officers at a 2014 board of inquiry in which he claimed his innocence and was allowed to stay in the Marine Corps. He also admitted to lying to a Washington Post reporter John Woodrow Cox about his involvement with the women.

Back in 2013, after a general court-martial found him guilty of the underlying sexual misconduct, Thompson was sentenced to confinement for two months and a fine of $60,000.

The report also notes that:

Under Thompson’s plea agreement, the court agreed to endorse his “request to retire,” a decision which will have to be reviewed by the secretary of the Navy, Greer [the military judge] said.

While it’s unclear what grade he could retired at, Greer said it could be O-2, “which I believe was the last grade served honorably.

10 U.S.C. § 1186(b) provides that because Thompson has 20 years of active service, such retirement must be approved. Had Thompson received a sentence of at least six months, however, and actually served six months, he could have been dropped from the rolls under 10 U.S.C. § 1161 and 1167.

Thompson’s retirement will, as noted by the military judge, involve a determination of the highest grade in which he served satisfactorily, pursuant to 10 U.S.C. § 1370.

If transferred to the retired list Thompson will be subject to the UCMJ for the rest of his life. See United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

Because of a change in circumstances, Judge Stucky is looking for a clerk for a two-year commitment beginning in August 2017. The candidate should have completed law school (J.D.) no later than spring 2017 and have taken the bar examination no later than the summer of 2017. If interested, please email a resume and transcript (need not be official) as soon as possible to edward.mcgugin@armfor.uscourts.gov. Interviews will be scheduled as qualified candidates submit applications.

More details here.

An alert reader drew our attention to this docket page where the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016, appears to be scheduled for disposition by guilty plea on Thursday.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments. However, I’m aware of one oral argument scheduled for Wednesday, April 12, 2017, at 10 a.m.:

United States v. Kelly, No. 20150725

Issues:
I. Whether the military judge improperly instructed the members on the offense of abusive sexual contact by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

II. Whether the military judge improperly instructed the members on the offense of sexual assault by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

[III]. Whether the defense request for a mistrial should have been granted.

[IV]. Whether it was ineffective assistance of counsel for defense counsel to waive the causal challenge of the senior member by failing to use the defense peremptory challenge.

Disclosure: I represent the appellant in my civilian capacity. 

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 18, 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 next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2017.

A gracious reader brought my attention to an article entitled The Silence Penalty, 103 Iowa L. Rev. ____ (forthcoming 2017), which is soon to be published by the University of Iowa College of Law, and which is authored by Professor Jeffrey Bellin of William & Mary Law School. Professor Bellin has examined data from actual criminal trials, as well as the results of a recent 400-person mock juror simulation, to conclude that an accused person who declines to take the stand in a jury trial suffers a conviction rate penalty that is about equal to having evidence of a prior conviction presented against them. In contrast, “for defendants without prior convictions, testifying coincided with an almost doubling of the chances of acquittal.” The Silence Penalty at 26.   Professor Bellin warns:

The surprising power of the silence penalty should give pause to the many defendants without a prior record who demand a trial but then decline to take the witness stand[.] . . . Declining to testify, [] puts them in the same position as a defendant with prior convictions. This is a major blow to acquittal prospects and one that (tactically speaking) should be avoided if at all possible.

Id. at 30. For defendants with prior convictions, the research found that the rate of conviction was about the same whether the accused testified or not.

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Audio of this week’s oral arguments before CAAF is available at the following links:

United States v. Mitchell, No. 17-0153/AR (CAAFlog case page): Oral argument audio

United States v. Herrmann, No. 16-0599/AR (CAAFlog case page): Oral argument audio