Following CAAF’s grant on Monday in United States v. Warner, No. 13-0435/AR, (discussed here) the court has granted review in another Army case, with the first issue exactly the same as that in Warner.

United States v. McKim-Burwell, No. 13-0329/AR:

 I. WHETHER SPECIFICATION 2 OF THE CHARGE IS VOID FOR VAGUENESS BECAUSE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II. WHETHER THERE IS SUBSTANTIAL BASIS IN LAW TO QUESTION APPELLANT’S GUILTY PLEA TO SPECIFICATION 2 OF THE CHARGE WHEN THE MILITARY JUDGE FAILED TO PROPERLY DEFINE “SEXUAL OBJECTS OR IN A SEXUALLY SUGGESTIVE WAY” AND WHERE THE PROVIDENCE INQUIRY FOR THIS CONSTITUTIONALLY PROTECTED MATERIAL FAILED TO ELICIT APPELLANT’S ACTIONS AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING IN LIGHT OF UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

CAAF just released five opinions:

Analysis to follow. Lots of analysis… to follow.

Here is a link to the Judgment in United States v. Gaskins.

See prior blogs on this case.

A not uncommon issue in military cases.

SCOTUSBlog highlights the petition in:

The court has a published opinion in United States v. Bremer., __ M.J. ___ (N-M Ct. Crim. App. 2013)

Most interesting is the discussion of additional now public information about Judge Palmer.

This is a case which was first begun in May 2012 when it appears the MJ took a provident plea.  Upon hearing sentencing evidence the MJ ordered an R.C.M. 706 examination, and rescheduled trial for 22 June 2012.  That’s important because the “training” he gave was on 21 June 2012.  On 22 June 2012 the defense asked the MJ to recuse himself based on the comments in the training, and a week later:

[T]he military judge held an Article 39(a), UCMJ, session on the motion on 27 June 2012. The motion hearing covers 192 record pages and constitutes the bulk of the record of trial in this case.  A somewhat different account of the comments emerged on 27 June 2012, when the court reconvened and the military judge answered voir dire questions from counsel. Following trial, the military judge eventually wrote his recollection of the comments in his “Findings of Fact,” dated 2 July 2012, which are appended to the record.

Slip op. at 3.

The military judge took the following actions in this regard, which we conclude would lead a reasonable person to question whether he lost his fairness and impartiality and became primarily focused on protecting himself:

1. In an attempt to explain his conduct, the military judge opened the hearing with a prepared series of pronouncements that cover six single-spaced pages of transcript, over a defense objection that the statement made the military judge a witness to the motion he was himself deciding.

2. As he read his prepared statement, although the military judge purported to accept responsibility, he was palpably defensive and transparently critical of two junior judge advocates. He began by providing a lengthy description of a trial counsel’s errors during recent arraignments in his courtroom. The military judge also alleged that one of the student judge advocates who authored an affidavit had dozed off during his PME, presumably detracting from her credibility as a witness.

3. The military judge admitted that his “comments would be seen as coming from the prospective of a hard-charging trial counsel seeking justice,” but insisted that, despite his current billet, he “never intended . . . [that] these comments would be viewed as coming from [his] position as a military judge.”  Record at 132. In his view, his comments were a motivational and “hyperbolic” form of “play-acting for the edification of student judge advocates.” Id. at 132-33. But he never explained that to the student judge advocates in attendance, and assumed that the student who requested the training would inform the other students of the intended “context” and “perspective.” Id. at 133.

4. The military judge apparently played some role in the appearance of a senior judge advocate to “offer . . . helpful testimony” at the motion hearing. Id.  at 137. The defense objected to this testimony because the military judge had spoken privately with the witness, who seemingly had no firsthand knowledge of the facts directly relevant to the motion. But the military judge overruled the objection, and the witness proceeded to give what amounted to a character defense of the military judge. Id. at 297. The witness notably closed his testimony in a manner evocative of an advocate’s summation, specifically addressing the defense counsel thus: “You have got to consider everything that I’ve said and all of the other witnesses, and then you have to ask yourself, is he going to be unfair, is he going to be biased. You know, you have to ask is that man going to be fair or not. And I would hope that after the close of the testimony, after hearing the judge, a man whom I believe to be an honorable man, that you’ll tell your client that he’ll have a fair trial.” Id. at 302.

5. The military judge also appears to have appended a six-page affidavit to the record following trial, written by a judge advocate he supervised in the defense office at a previous duty station. See AE VI.  Again, the tenor of the affidavit is a character defense of the military judge. The author attempts to explain that the military judge often made similar comments as a way to force counsel to adopt a different perspective. Most of the affidavit focuses on the military judge’s superior qualities as a supervisor and lawyer, closing with the line: “Were I to be accused of a crime, I would hope for a court-martial . . . with a military judge as knowledgeable in the law and dedicated to the process and justice as [this military judge] . . . and I would hope for another judge advocate just like him to represent me.

6. When one of the student judge advocates testified (the same one who the military judge drew attention to for appearing groggy during his PME), the military judge allowed the trial counsel to ask her several peculiar questions, including what her law school grade point average was, whether she agreed that the military judge “has a brilliant legal mind,” and whether she was “astounded by his ability to cite case law from memory.”  Record at 207, 216.

7. The military judge appended another document to this record following trial, styled as his ruling on Defense Motion Requesting Recusal or Disqualification of the Military Judge, AE XIV. It contains “Findings of Fact” which are indistinguishable from factual assertions or recollections drawn from the military judge’s own memories or perspective on events. The exhibit is an ungainly read, with the military judge writing about himself in the third person yet inserting commentary and context that can only be relayed from the perspective of the first person. It relies heavily on the senior judge advocate’s supportive testimony.

At this motion hearing and afterward, the military judge became “part of the problem, rather than part of the solution.”  United States v. Gorski, 48 M.J. 317, 324 (C.A.A.F. 1997) (memorandum opinion).

Slip op. at 4-6.

Judge Perlak wrote for the court; it was a unanimous decision (MODZELEWSKI, JOYCE)

MAJ Hasan Firing Defense Counsel

In a move that shouldn’t be all that surprising to informed observers, MAJ Nidal Hasan has moved to fire his military lawyers and proceed pro se in his own defense in his Ft. Hood shootings court-martial.  The Austin-American Statesman reports, here:

The request will be taken up by military judge Col. Tara Osborn at a May 29 pre-trial hearing. Because of the request, the planned selection of a jury — or panel, in military parlance — has been pushed back from May 30 to June 5. The trial is scheduled to begin by July 1.

H/t PC

CCR and Others Take Transparency Fight to US District Court

WaPo reports, here:

The Wiki[shhhh] organization and a handful of journalists asked a federal judge Wednesday to order greater transparency in the court-martial of an Army private who has acknowledged sending reams of classified document to the Wiki[shhhh] website.

The Center for Constitutional Rights, representing Wiki[shhhh] and its founder Julian Assange, filed the petition in U.S. District Court in Baltimore. It seeks an order requiring public access to all documents in the court-martial of Pfc. Bradley Manning.

Military Sexual Assault Issue Leads to UCMJ Change Proposal

From AP (via Yahoo News, here), the HASC Military Personnel Subcommittee voted on changes to the UCMJ Wednesday:

Members of a House panel angry over the growing epidemic of sexual assaults in the military took a key step toward tackling the problem by passing legislation Wednesday that would strip commanding officers of their longstanding authority to unilaterally change or dismiss court-martial convictions in rape and assault cases. Lawmakers believe the revision will lead to a cultural shift and encourage victims to step forward.

Here is the link, courtesy of PC, to the proposed chagnes, starting at page 12.

And finally, a little history, minutes of HMS Bounty mutiny court-martial discovered, see Daily Mail report here.

The House Armed Services military personnel subcommittee is scheduled to vote Wednesday on the changes, which are supported by Republicans and Democrats and reflect congressional outrage over the poor results that military leaders have achieved in their drive to change the culture within the ranks to combat sexual assault.

Once approved by the military personnel panel, the measures will be folded into the Armed Services Committee’s broader defense policy bill for the 2014 fiscal year, which the full House will consider in the coming weeks. Separately, the Senate Armed Services Committee is taking up a series of sexual assault prevention measures next month. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Huffington Post.

Does someone have a link(s) to the various public discussions/hearings about the various specific changes.

Here is the proposal (go to page 12).

http://docs.house.gov/meetings/AS/AS02/20130522/100878/BILLS-113HR1960ih.pdf

And the hits just keep on coming in the Army, see CNN report here and Military Times report here.  Form Military Times:

The Army announced it has suspended the commander of Fort Jackson, S.C., amid misconduct allegations that include adultery and a physical altercation, according to a spokesman for Training and Doctrine Command.

Brig. Gen. Bryan T. Roberts was suspended today as commander of the Army Training Center and Fort Jackson by TRADOC commander Gen. Robert W. Cone, based on a preliminary investigation by Army Criminal Investigation Command. The investigation pointed to a breach of good order and discipline, “which was contrary to Army values and could not be condoned,” said spokesman Harvey Perritt.

I guess at least the report isn’t sexual assault.  H/t AG.

From WaPo, reports on the motions decisions in the PFC Manning case:

The judge in the court-martial of Pfc. Bradley Manning said Tuesday that she will close portions of the trial to the public to protect classified material, a ruling that is likely to frustrate civil liberties groups that have alleged the case is being shrouded in secrecy.

And more on yesterday’s goings on in Manning from the AP’s Dave Dishneau (via Seattle Times) here:

Lawyers in the court-martial of an Army private who sent more than 700,000 classified U.S. documents to WikiL[shhh] said Tuesday they have reached a deal that may eliminate the need for testimony from a member of the military team that killed Osama bin Laden. Prosecutors also agreed to accept Pfc. Bradley Manning’s guilty plea to a lesser version of one of the 22 counts he faces.

Under the agreement, both the prosecution and defense teams would acknowledge at Manning’s trial next month that there is digital evidence indicating bin Laden saw some of the material Manning released. The raid team member, presumably a Navy SEAL, was expected to testify that the evidence was recovered during a May 2011 raid on the al-Qaida leader’s compound in Abbottabad, Pakistan.

Link to audio here.

A reader advises that the recently-signed Executive Order 13643 (discussed here, here, and here) is now available in its entirety: link to PDF.

Notably, the only changes to the MCM are the revisions to the Military Rules of Evidence to conform with the similar changes to the Federal Rules of Evidence (provided in their entirety here) and the establishment of the maximum punishments for Article 120 (2012) (provided here). The other changes proposed by the JSC last October (discussed here) go back to the drawing board.

Last month the Coast Guard Court of Criminal Appeals issued a published opinion in United States v. Shannon, __ M.J. __, No. 1358 (C.G.C.C.A. April 12, 2013). The case involves two issues arising from pleas of guilty by the Appellant (an E-6), before a general court-martial composed of a military judge alone, to one specification of maltreatment, two specifications of assault, and one specification of wrongfully providing alcoholic beverages to a minor, in violation of Articles 93, 128, and 134, for which the Appellant was sentenced to reduction to E-3 and a bad-conduct discharge.

Judge Norris writes for a unanimous three-judge panel, rejecting the issues raised by the Appellant and affirming the findings and sentence. The issues are:

I. [Whether t]he Military Judge abused his discretion by not dismissing the charges against Appellant after finding unlawful command influence.

II. [Whether t]he Military Judge abused his discretion by not dismissing Appellant’s case with prejudice after granting Appellant’s motion to dismiss for violations of RCM 707(a).

The opinion makes pretty quick work of the first issue, which involves curative measures adopted by the trial judge to address some pretty egregious unlawful command influence by the Appellant’s officer-in-charge:

In this case, the incident that precipitated the charges against Appellant was his alleged rape of the girlfriend of one of his shipmates. Upon this accusation being made, Appellant was removed from his command, USCGC GREENBRIER, and was sent to another command. Over the next 13 months, the Officer-in-Charge (OIC) of GREENBRIER repeatedly referred to Appellant as “the rapist” in all manner of settings, including in front of the entire crew. This behavior was the basis for a motion to dismiss for unlawful command influence (UCI), which was litigated at an Article 39(a), UCMJ, session on 16 November 2010.

Shannon, slip op. at 2. The trial judge applied significant remedies short of dismissal, and Judge Norris finds them adequate, noting that they are “strikingly similar” to the remedies crafted by the trial judge and found adequate in United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010). Slip op. at 4. Further, unlike Douglas (where CAAF found insufficient evidence in the record that the remedies were actually applied), Judge Norris finds that, “there is affirmative evidence in the record in the instant case that the remedies were carried out.” Slip op. at 6.

The second issue addresses the fact that this case was before two separate courts-martial, with the first court ending with a pretrial dismissal, without prejudice, due to a violation of the speedy trial provisions of Rule for Courts-Martial 707. The Appellant argues that the dismissal should have been with prejudice (meaning he could not be charged again). But:

From 27 May 2010, when the first judge dismissed the first charges without prejudice on R.C.M. 707 grounds, to 9 January 2012, when Appellant, on appeal, raised the issue of the character of dismissal of the first charges, the record is entirely devoid of evidence that Appellant took any action to challenge the nature of the dismissal.

Slip op. at 9. Like voting, speedy trial objections have to happen early and often, and Judge Norris notes that the Appellant did not raise the RCM 707 issue in the second (and ultimately final and reviewable) court-martial. “Appellant underwent two separate trials, and the appeals process for his second trial is not a proper forum in which to appeal rulings made in the first trial.” Slip op. at 9.

But Judge Norris also engages in a discussion about the Appellant’s claim that he entered a conditional plea, “which preserved any speedy trial issue, including the speedy trial issue under R.C.M. 707 from the first trial.” Slip op. at 11. Judge Norris reasons:

The military judge’s acknowledgment that the speedy trial issue was not waived related only to Appellant’s Constitutional speedy trial motion in the second trial, and did not encompass his R.C.M. 707 speedy trial motion from the first trial. This conclusion is warranted because (1) the only speedy trial motion that had been litigated before this judge was the Constitutional motion; the R.C.M. 707 speedy trial issue from the first trial had never been the subject of any substantive discussion at the second trial; (2) the judge’s initial advisement to Appellant was that, by his plea, he would waive five enumerated motions, including the Constitutional speedy trial motion from the second trial; the R.C.M. 707 speedy trial motion was not one of the enumerated motions; and (3) following the recess, when the military judge revised his advice to Appellant that he would be able to appeal the speedy trial issue, notwithstanding his guilty plea, his advisement was singular, i.e. his plea did not waive “the” speedy trial “motion.”

Unlike a denial of due process such as is envisioned by a Constitutional speedy trial motion citing Barker v. Wingo, a speedy trial issue under R.C.M. 707 can be waived. Hence Appellant’s guilty plea waived any issue regarding the character of the dismissal of the first charges. Even if Appellant’s plea could be considered a conditional plea, it is clear that preservation of the right to appeal the character of the dismissal of the first charges was not a condition upon which Appellant’s plea was made. Thus, on the general principle that a guilty plea waives any defects, as well as by reference to R.C.M. 707(e), Appellant waived his right to appeal that issue by his guilty plea.

Slip op. at 11 (citations omitted). Ultimately, by failing to litigate at the second court-martial the character of the dismissal from the first court-martial, the Appellant waived this issue.

There isn’t a whole lot of appellate litigation in the Coast Guard, so I think the odds are good that there will be a petition for review by CAAF. I don’t know enough about this case to say if such a petition is a good idea from a legal perspective, but from a practical perspective I have to recommend caution when appealing a ruling from someone named “Judge Norris” due to the potential for roundhouse kicks.

Here is a Marine Corps Times story that has been “making the rounds” as Zee said.  A Marine Corps O-4 judge advocate has apparently filed an IG complaint about the Commandant’s handling of the scout sniper cases in Afghanistan stemming from videos showing the Mariens urinating on corpses.  The report states:

The top Marine general and four of his legal advisers are implicated in a complaint to the Defense Department Inspector General charging they inappropriately inserted themselves into the prosecution of cases stemming from the infamous video showing scout snipers urinating on dead insurgents in Afghanistan.

The complaint, filed by Marine Maj. James Weirick, an attorney assigned to Marine Corps Combat Development Command in Quantico, Va., alleges Commandant Gen. Jim Amos, or others acting on his behalf, deliberately sought to manipulate the legal process, effectively stacking the deck against the scout snipers in the video.

Weirick’s complaint, a copy of which was obtained by Marine Corps Times, also alleges Amos showed preferential treatment to ensure the promotion of then-Maj. James B. Conway, the son of Amos’ predecessor as commandant, retired Gen. James T. Conway. Conway was executive officer of the scout snipers’ unit, 3rd Battalion, 2nd Marines.

The Commandnat discussed the videos in his recent the Heritage briefs, which are now famous for their discussion of sexual assault issues.  See our prior coverage here.

In a recent unpublished opinion in United States v. Rapp, No. 201200303, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals reminds us that words mean things.

Seaman Apprentice Rapp was convicted, pursuant to his pleas by a military judge alone as a general court-martial, of one specification of receiving child pornography, one specification of possessing four or more images of child pornography, and one specification of attempting to receive child pornography, all in violation of Article 134. He was sentenced to confinement for 5 years (later reassessed to 54 months), total forfeitures, reduction to E-1, a $16,000 fine, and a dishonorable discharge. Pursuant to a pretrial agreement, all confinement in excess of 12 months was suspended.

Before the CCA, the appellant claims, inter alia, that the military judge erred by accepting his guilty plea to receiving child pornography and possessing four or more images of child pornography, because some of the 16 images were not child pornography. The CCA agrees.

Judge Joyce writes for a unanimous panel. Her opinion begins with a discussion of how the Government incorporated the definition of child pornography provided by 18 U.S.C. § 2256(8) into the charge. Judge Joyce notes that this definition is pretty specific, including requiring the visual depiction to involve “sexually explicit conduct,” which means:

actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)lascivious exhibition of the genitals or pubic area of any person. . .

Slip op. at 5. “[T]he application of ‘lascivious exhibition’ is pivotal to this case,” and Judge Joyce carefully reviews caselaw discussing what makes an exhibition “lascivious” in this context. Slip op. at 6-7. Notably, of the 16 images at issue (and attached to the record as a prosecution exhibit), “only one image included in [the exhibit] depicts a sexual act.” Slip op. at 6. Also, the Appellant didn’t review the images in advance of his plea, which occurred 18 months after his computer was seized, leading to a pretty non-specific plea inquiry. After reviewing the transcript of the plea inquiry, Judge Joyce concludes:

[T]he military judge was required to ensure compliance with the legal statutory definition of child pornography. Mere conclusions of law recited by the accused are insufficient to establish a factual basis for a guilty plea. As part of establishing the facts to a child pornography charge such as this, the appellant must describe images that contained minors engaged in sexually explicit conduct, in this case the relevant conduct being the lascivious exhibition of the genitals and pubic area of any person. An insufficient inquiry took place, and the appellant did not satisfy the elements of each and every offense.

Slip op. at 11 (citations and marks omitted). She also finds that the Appellant was not provident to an attempt:

During the providence inquiry, the appellant repeatedly told the military judge, “I tried to get child pornography” and “I was attempting to receive child pornography.” Record at 71, 73. Again, these statements are nothing more than legal conclusions, and are compromised by the appellant’s apparent misunderstanding of what constitutes child pornography.

Slip op. at 12-13. But then Judge Joyce goes one step further, noting that of the 16 issues at issue in this case, six of them “do not depict sexually explicit conduct, and, in fact do not depict any genitals or pubic areas, much less a ‘lascivious exhibition.’” Slip op at 13-14. She finds that these images are constitutionally protected, and raising concerns about other images, including distinguishing some as “child erotica” vice “child pornography,” and wondering about the intent of the photographers for others.

Finally, the Judge Joyce cites CAAF’s opinion last term in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012): “If a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision.” Slip op. at 15. And so the findings are set-aside and a rehearing authorized.

Re-reading my opinion analysis in Barberi, I see this penultimate paragraph:

Moreover, Barberi creates an even bigger unanswered question: How should the government charge a child pornography case involving multiple images? If the government uses a single specification to allege wrongful possession of multiple images, and just one of those images doesn’t meet the definition of child pornography, must the entire conviction be set-aside? If the answer to this question is “yes,” then must the government charge each image as a separate specification? What about multiplicity and unreasonable multiplication of charges? What about the majority’s prejudice analysis that turns on the “contribut[ion] to the conviction” of the “protected” images; will the admission of any “protected” image at trial, even for a separate specification, create reversible error as to all?

Barberi was a contested case (where the key issue was general verdicts) and this case was a guilty plea (where the key issue is the definition of child pornography), but the NMCCA’s treatment of this case makes me pretty confident that a constitutional deficiency affecting only a few (maybe as few as just one) of the images will be fatal to a child pornography conviction. Accordingly, the Government is going to have to be much more careful with its charging decisions going forward. Do I get to say I predicted this?

CAAF today granted review of these two issues:

I.   WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II.  WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012). 

CAAF decided United States v. Solomon, No. 13-0025/MC, (opinion) (CAAFlog case page), on May 8, 2013, finding that the military judge erred in admitting evidence of prior sexual misconduct by the accused (for which he was tried in a separate general court-martial and acquitted) under Military Rule of Evidence 413, reversing the NMCCA, and setting aside the findings of guilty to the sexual assault charge.

Judge Stucky writes for a unanimous court.

The Appellant was convicted, by a general court-martial composed of members with enlisted representation, of numerous offenses, some in accordance with and some contrary to his pleas. Relevant to this appeal, the Appellant was convicted of abusive sexual contact in violation of Article 120, based on an encounter with his roommate, Lance Corporal (LCpl) [K]. LCpl K testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K testified that Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him.

Despite this compelling evidence of guilt, the prosecution also presented evidence of prior acts of sexual misconduct, pursuant to M.R.E. 413 which provides that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

M.R.E. 413(a). Prior to this case, the Appellant was tried by a separate court-martial for alleged sexual assaults of two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, and evidence at that trial showed that he had an alibi: The Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls B and R at the same time that LCpls B and R claimed he assaulted them. Nevertheless, the military judge allowed the Government to present the testimony of LCpls B and R at the subject court-martial, where they testified about the incident involving them (again, of which the Appellant was acquitted), finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413. LCpls B and R  testified, LCpl K testified, the Trial Counsel then made potentially improper argument in the findings phase of the court-martial, and the Appellant was convicted of sexual offenses involving LCpl K.

The NMCCA reviewed the case, including the MRE 413 and the improper argument issues, and affirmed the findings of guilty of the sexual offense specifications.  CAAF then granted review of two issues:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

The court answers the first question in the affirmative, and does not reach the second question.

Judge Stucky’s discussion begins by noting that prior to trial, the Appellant moved to suppress evidence of prior incidents of sexual misconduct under MRE 413 and MRE 404(b). The military judge held a hearing and granted the Appellant’s suppression motion for two other incidents, but denied it for a third (the incident involving LCpls B and R). Reviewing this ruling and the CCA’s decision affirming it, Judge Stucky observes that:

Noting that the military judge did not explicitly reconcile Appellant’s alibi evidence with LCpl B’s and LCpl R’s testimony, the CCA determined that “[i]t is implicit in his findings of fact that the military judge concluded that the appellant entered the female Marines’ room earlier than they recall and was apprehended subsequently,” and the CCA “decline[d] to disturb the factual findings of the judge on the grounds that they are unsupported by the record or clearly erroneous.”

Solomon, slip op. at 7 (quoting Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL 3106790, at *4). Appellate courts review “a military judge’s decision to admit evidence for an abuse of discretion.” Slip op. at 7. Moreover, “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Slip op. at 7-8. And even more importantly,

M.R.E. 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. This court has noted that inherent in M.R.E. 413 is a general presumption in favor of admission.

Slip op. at 8 (marks and citation omitted) (emphasis added). Buried in all this deference and permissiveness are three “threshold requirements for admitting evidence of similar offenses in sexual assault cases under M.R.E. 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under M.R.E. 401 and M.R.E. 402.” Slip op. at 8 (citation omitted). And then the military judge must also balance the probative value of the evidence against the danger of unfair prejudice under M.R.E. 403. But, despite these thresholds and balances, the permissiveness and presumptions abound, because “when a military judge articulates his properly conducted M.R.E. 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion.” Slip op. at 9.

So, with a strict standard of review, a presumption in favor of admission, and articulated findings on the record, how does CAAF unanimously reverse the trial judge’s decision admitting the evidence of the Appellant’s prior misconduct involving LCpls B and R?

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