The 2019 National Defense Authorization Act (NDAA) became law on August 13, 2018 and has two provisions that are particularly important for dealing with domestic abuse incidents in the military – from January 1, 2019, on.

First, Congress has amended Article 128 of the Uniform Code of Military Justice (UCMJ), to expressly state that the acts of strangulation or suffocation constitute aggravated assaults.

Second, a new enumerated offense entitled “Art. 128b. Domestic Violence” has been created.

This new crime punishes a broad range of misconduct.

Committing a violent offense (or violating a protective order with the intent to commit a violent offense) against a protected person is, of course, punishable under the new Article 128b.  But, so are non-violent offenses (including, expressly, violating protective orders or harming animals) when they are committed with the intent to intimidate or threaten a protected person.

These important legislative changes are not (yet) reflected in Part IV of the most current version of the Manual for Courts-Martial (MCM) published by the Joint Service Committee.

Accordingly, we do not yet have approved elements for use at trial, and no declared maximum punishment.  Practitioners will have to seek guidance elsewhere.

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The schedule of events for CAAF’s 2019 Continuing Legal Education and Training Program, on March 6-7, 2019, is available here.

The registration form is available here.

Article 120(b)(1)(B) (2012) prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault.

Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), replacing it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter (strict liability). Accordingly, the mens rea applicable to the offense is an open question. And mens rea is a pretty hot topic these days (it was the #8 Military Justice Story of 2017).

CAAF already granted review to decide the issue, in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). The Army CCA also just issued a published decision on the issue, holding that the minimum mens rea applicable to the offense is recklessness, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (discussed here).

But last week CAAF granted review in another case involving the same issue:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The CCA summarily affirmed without a written decision. Specialist (E-4) Kangich was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault by causing bodily harm, in violation of Article 120(b)(1)(B), where the bodily harm was two nonconsensual sexual acts. He was sentenced to confinement for 24 months, reduction to E-1, and a dishonorable discharge.

CAAF will hear oral argument in the certified Marine Corps case of United States v. Perkins, No. 18-0365/MC (CAAFlog case page), on Tuesday, January 22, 2018, after the argument in Smith. The Judge Advocate General of the Navy certified two issues to the court, on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property that was found in the garage of Perkins’ on-base home. The search authorization that gave military investigators access to that garage is at the heart of the case.

Perkins was in a relationship with a woman who alleged to military law enforcement that he was extorting her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. They found no illicit pictures or videos in the house, but they did find evidence of other misconduct.

Perkins moved to suppress that other evidence, arguing that the search of his home lacked probable cause. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

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CAAF will hear oral argument in the Army case of United States v. Smith, No. 18-0211/AR (CAAFlog case page), on Tuesday, January 22, 2018, at 9:30 a.m. The first of two cases to be argued that day (both involving the good faith exception to the exclusionary rule), Smith involves an appellate-stage challenge to the admission of the fruits of a search of electronic devices.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Warrant Officer One (W01) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with the other devices. The authorization was granted, several other devices were seized, and all of the devices were sent for examination.

The examination found no incriminating evidence on the devices seized from Smith’s home, and the examiners were initially unable to access the iPhone because it was locked. But because Smith previously synced his iPhone with one of his other devices, the investigators were able to use that prior connection to access the iPhone. After doing that, they discovered incriminating videos on the iPhone. Smith’s defense counsel moved to suppress the videos, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was overruled, the videos were admitted, and Smith was convicted.

On appeal, Smith renewed his objection to the admission of the videos, but with a new argument: that the search of the devices from his home – that made it possible to search the iPhone – lacked probable cause. The argument was based on CAAF’s opinion in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), part of the #7 Military Justice Story of 2017, and claimed an insufficient nexus between Smith’s phone and other devices. The Army CCA refused to consider Smith’s new argument and also concluded that the good faith exception applied (while noting that the military judge also determined that the inevitable discovery doctrine applied).

CAAF then granted review of two issues that embody a plethora of questions about the trial and appellate proceedings. The first issue presumes that the search of the devices seized from Smith’s home was unlawful (something no court has said), it presumes that the incriminating videos on Smith’s iPhone would never have been discovered but-for the search of the other devices (a question of technological capabilities), and it challenges the application of the good faith exception under the facts of this case. The second granted issue challenges the Army CCA’s refusal to consider Smith’s new suppression argument based on Nieto, and it suggests that the argument isn’t so much new as it is just a clarification of the trial stage objection that was not succinctly articulated.

It’s a complicated case that is made even more complicated by the briefs, because Smith offers a second new basis for suppression (that investigators exceeded the scope of the search authorization) and the Army Government Appellate Division makes numerous concessions.

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This week at SCOTUS: The Solicitor General filed this response in opposition to the cert petition in Larrabee. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 22, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on January 16, 2019, at 2 p.m.:

United States v. Pacheco, No. 20170177

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Laubach, No. 39396, on January 16, 2019, at 10 a.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

Here is an AP news story about the arrest and indictment of Navy Captain John Nettleton – who is on active duty – for obstruction of justice, concealment of material facts, falsification of records, and making false statements in connection with a 2015 investigation into the death of a civilian employed at Naval Station Guantanamo Bay. Nettleton was the commander of the installation at the time of the death.

The nine-count indictment is available here.

With a published opinion issued in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), a three-judge panel of the Army CCA holds:

recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.

Slip op. at 10. Writing for the panel, Judge Salussolia elaborates:

Recognizing the application of the general principle that “wrongdoing must be conscious to be criminal” and that we cannot discern the level of mens rea Congress intended to apply to Article 120(b)(l)(B), UCMJ, we find the mens rea of “recklessness” is the minimum mental state necessary to separate wrongful conduct from otherwise innocent conduct. See Gifford, 75 M.J. at 144. Recklessness requires an accused “knew that there was a substantial and unjustifiable risk that the social harm the law was designed to prevent would occur and ignored this risk when engaging in the prohibited conduct.” Haverty, 76 M.J. at 204-05 (citing Black’s Law Dictionary 1462 (10th ed. 2014)). Put differently, in the context of Article 120(b)(l)(B), UCMJ, an accused acts recklessly with respect to a victim’s nonconsent when he consciously disregards a substantial and unjustifiable risk that the victim does not consent to his engaging in the sexual act. See Model Penal Code § 2.02. Thus, to convict the appellant of sexual assault caused by bodily harm, the government had to prove the following: (1) that appellant committed a sexual act upon alleged victim; (2) that the alleged victim did not consent to the sexual act; and (3) that appellant committed the sexual act with a reckless disregard as to the alleged victim’s non-consent.

Slip op. at 13.

The decision comes in advance of CAAF’s resolution of the same question in the Army case of United States v. McDonald, No. 18-0308/AR (grant of review discussed here). CAAF has not (yet) scheduled oral argument in McDonald.

The decision also supersedes a prior – though unpublished – decision by the Army CCA, in which the court held:

We reject appellant’s assertion that “lack of consent” is a material element of the crime of sexual assault or abusive sexual contact requiring a separate mens rea. Consistent with our superior court, we believe it is more precise to treat the “nonconsensual” requirement as a potential subsidiary fact with respect to the element of bodily harm rather than a distinct element of the offense. See United States v. Neal, 68 M.J. 289, 301-02 (C.A.A.F. 2010) (interpreting the 2006 version of Article 120 to allow “treating evidence of consent as a subsidiary fact potentially relevant to a broader issue in the case, such as the element of force.”).

United States v. Rivera, No. ARMY 20160393, 2017 CCA LEXIS 740, at *7 n.3 (A. Ct. Crim. App. Nov. 28, 2017) (link to slip op.), rev. denied, 77 M.J. 313 (C.A.A.F. 2018)

CAAF decided the Army case of United States v. Nicola, __ M.J. __, No. 18-0247/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 9, 2019. Emphasizing that an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and that such disbelief may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

Judge Maggs writes for a unanimous court.

CAAF granted review of a single issue:

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 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 high-intoxicated, junior female soldier, identified in CAAF’s opinion as Corporal AA.

Corporal AA testified during Nicola’s trial, and Nicola testified in his own defense. Their stories conflicted. Corporal AA claimed that Nicola sexually assaulted her in the shower in her barracks room (he was acquitted of an offense related to that alleged sexual assault). Nicola claimed that he only briefly saw Corporal AA in her bra as she undressed herself to get into the shower, and then that he later looked at her in the shower only to check on her welfare. Nicola focused on his version of events to claim that his conviction of indecent viewing is legally insufficient, while the Army Government Appellate Division asserted that Corporal AA’s version of events supports Nicola’s indecent viewing conviction (even though Nicola was acquitted of the related sexual assault allegation) and also that the members were free to disbelieve Nicola’s version of events and conclude that – even if he did not do everything Corporal AA claimed he did – he did more than he admitted to doing.

CAAF agrees with the Government Division, with Judge Maggs explaining that the court “find[s] the evidence legally sufficient to support each of the Government’s theories.” Slip op. at 6. The primary reason for that finding is Nicola’s testimony in his own defense.

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Yesterday CAAF granted review in this Army case:

No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER AN APPELLANT IS AUTHORIZED TO REQUEST PIERCE CREDIT FOR THE FIRST TIME AT A COURT OF CRIMINAL APPEALS.

II. IF THE ARMY CCA ERRED IN HOLDING THAT THE FAILURE TO REQUEST PIERCE CREDIT BELOW CONSTITUTED WAIVER, WAS ITS ACTUAL REVIEW OF THIS ISSUE UNDER ITS ARTICLE 66(c), UCMJ, AUTHORITY STILL SUFFICIENT?

Briefs will be filed under C.A.A.F. R. 25.

Pierce credit is credit at a court-martial for prior nonjudicial punishment for the same offense. In United States v. Pierce the Court of Military Appeals (CAAF’s predecessor court) concluded that:

It does not follow that a servicemember can be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a court-martial for the same conduct. Either consequence would violate the most obvious, fundamental notions of due process of law. Thus, in these rare cases, an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.

27 M.J. 367, 369 (C.M.A. 1989) (emphasis in original). More recently, CAAF observed that:

The accused, as gatekeeper, may choose whether to introduce the record of a prior NJP for the same act or omission covered by a court-martial finding and may also choose the forum for making such a presentation.

United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999). Then, the court explained, the cognizant authority will determine the appropriate credit:

If the accused chooses to raise the issue of credit for prior punishment during an Article 39(a) session rather than on the merits during sentencing, the military judge will adjudicate the specific credit to be applied by the convening authority against the adjudged sentence in a manner similar to adjudication of credit for illegal pretrial confinement. If the accused chooses to raise the issue of credit for prior punishment before the convening authority, the convening authority will identify any credit against the sentence provided on the basis of the prior NJP punishment. Likewise, if the issue is raised before the Court of Criminal Appeals, that court will identify any such credit.

Gammons, 51 M.J. at 184.

The Army CCA issued a published opinion in Haynes available here and at 77 M.J. 753, finding waiver but with a catch:

[W]e read Gammons as requiring an accused to raise the issue of Pierce credit to either the court-martial or to the CA to avoid waiver as a matter of law. If waived, no relief can be obtained as a matter of law from this court. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (explaining that a valid waiver of an issue at trial extinguishes the alleged error on appeal).

Here, appellant waived any entitlement to Pierce credit when he affirmatively told the military judge that he was not entitled to any additional confinement credit and stipulated (see below) that the Article 15 addressed post-preferral misconduct. As cited in Gammons, this is also consistent with R.C.M. 1001(b)(2) (for personnel records of an accused introduced during sentencing, “[o]bjections not asserted are waived”).

77 M.J. at 757, slip op. at 6. The catch is that the CCA found that the stipulated facts preclude any credit, because “the Article 15 and the charged offense addressed separate misconduct.” Haynes, 77 M.J. at 757, slip op. at 6. CAAF has addressed such a situation before, with the explanation that:

[A]lthough Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses. . .

United States v. Bracey, 56 M.J. 387, 389 (C.A.A.F. 2002).

This page on CAAF’s website announces the 2019 Continuing Legal Education and Training Program:

2019 Continuing Legal Education
and Training Program
March 6 – 7, 2019

American University Washington College of Law
Claudio Grossman Hall
4300 Nebraska Avenue, N.W.
Washington, D.C. 20016

CAAF decided the Air Force case of United States v. King, 78 M.J. __, No. 18-0288/AF (CAAFlog case page) (link to slip op.), on Friday, January 4, 2019. Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

Chief Judge Stucky writes for a unanimous court.

Airman First Class (E-3) King was convicted contrary to his pleas of not guilty, 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 evidence against King included an admission by King that he searched for and looked at naked images of young girls, and it also included the results of a forensic examination of King’s electronic devices that revealed thousands of offensive images and three specific images of child pornography. Those three images were found on King’s home computer, but in hard-to-access places: two were found in a web browser’s cache (a storage location to make repeat browsing faster) and one was found in unallocated space (likely meaning that it was a deleted item). King was convicted of knowingly and wrongfully viewing those three specific images, and CAAF granted review of a single issue challenging the sufficiency of that conviction in light of the location of the images:

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?

CAAF finds the evidence legally sufficient, but Chief Judge Stucky’s opinion begins with the caveat that it does so, “given the very low threshold required to sustain a conviction for legal sufficiency.” Slip op. at 1.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

Yesterday, the blog Lawfare published a timely piece written by Army judge advocate, Major Dan Maurer, entitled Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both?  In the article, Major Maurer tries to make sense of a variety of recent developments impacting the military justice system.

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The #1 Military Justice Story of 2018 is the Supreme Court’s decision in Ortiz v. United States, 585 U.S. __, 138 S. Ct. 2165 (Jun. 22, 2018) (link to slip op.).

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