CAAF decied the certified Air Force case of United States v. Katso, __ M.J. __, No. 14-5008/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 30, 2015. CAAF holds that the testimony of an expert witness did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

Judge Ryan writes for the court, joined by all but Judge Ohlson, who dissents.

The published opinion of the Air Force CCA provides the following facts:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified [appellee] as her attacker.

United States v. Katso, 73 M.J. 630, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and the appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was then reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial about the DNA results, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellee’s right to confrontation. The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

The Government certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

CAAF now reinstates the appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry. Judge Ryan’s majority opinion conducts a detailed Confrontation Clause analysis of the testimony of Mr. Davenport, however her ultimate conclusions are solidly based on CAAF’s own precedent. Specifically, as Judge Ryan explains:

In the absence of clear guidance from the Supreme Court, we are bound, within the constraints discernible from controlling precedent, to provide a clear rule for the military justice system. Fortunately, we already have a rule. This Court’s precedent makes clear that even when an expert relies in part upon “statements” by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion. Blazier II, 69 M.J. at 224-25.

Slip op. at 24. Applying this clear rule, Judge Ryan concludes:

Experts may “review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions.” Blazier II, 69 M.J. at 224. That is precisely what happened here.

Slip op. at 25.

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Both the Senate and the House have passed versions of the National Defense Authorization Act for Fiscal Year 2016 that contain numerous military justice provisions. The Senate was last to act (passing its version on June 18), and the House has requested a conference to resolve the differences.

I’ve excerpted the military justice sections of both bills into separate documents. The House version is available here. The Senate version is available here.

Notable sections include:

  • Section 546 of the Senate version, changing the corroboration rule for confessions to require only corroboration of the trustworthiness of the confession rather than corroboration of the actual matters confessed. The corroboration rule (and its requirement for corroboration of facts rather than truthiness) was at issue this term in United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page).
  • Section 557 of the House version, requiring establishment of a database to track all service members – current and former – who have been convicted of a sex offense at a court-martial, for the purpose of ensuring that they are properly registered as a sex offender.
  • Section 549 of the Senate version, permitting an alleged victim to file an interlocutory appeal of certain issues, requiring a CCA to conduct a de novo review of those issues, and requiring the CCA to issue its decision within 72 hours of the filing of the petition.
  • Section 551 of the Senate version, granting an alleged victim a right to Special Victims’ Counsel during questioning by military criminal investigators, but specifically stating that a violation of the right shall not be a basis to suppress any statement given by an alleged victim.
  • Sections 546 and 1159 of the House version, which would require that a victim be allowed to participate in nonjudicial punishment and administrative separation proceedings.
  • Section 548 of the House version, adding a mandatory minimum 2 year period of confinement to the mandatory minimum dishonorable discharge for certain sex offenses.
  • Section 556 of the House version, requiring public access to court-martial documents at all stages of the proceedings.
  • Various provisions in both bills expanding the scope of the role of Special Victims’ Counsel.

Last term, in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

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This week at SCOTUS: A cert petition was filed last week in Buford v. United States, No. 14-601. In United States v. Buford, 74 M.J. 98 (C.A.A.F. Mar. 24, 2015) (CAAFlog case page), an interlocutory Government appeal, a divided CAAF held that the military judge wrongly concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case.

I’m not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF has posted its oral argument dates for the September 2015 Term of Court:

October 2015: 6, 7, 20, 21, 27, 28
November 2015: 17, 18
December 2015: 15, 16
January 2016: 12, 13, 26, 27
February 2016: 10, 23, 24
March 2016: 15, 16
April 2016: 5, 6, 26, 27
May 2016: 10, 11

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

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments

 

CAAF decided the Army case of United States v. Blouin, __ M.J. __, No. 14-0656/AR (CAAFlog case page) (link to slip op.), on Thursday, June 25, 2015. Sharply divided, CAAF narrowly concludes that the appellant could not have understood how the child pornography laws applied to the facts of his case. Accordingly, the court reverses the appellant’s pleas of guilty to wrongful possession of child pornography, and the published decision of the Army CCA.

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

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of possession of child pornography, as defined in 18 U.S.C. § 2256(8), as conduct prejudicial to good order and discipline in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

As described by the Army CCA in its published opinion affirming the appellant’s pleas, the appellant entered into a stipulation of fact that approximately 173 images discovered on his electronic devices were likely child pornography. But of those 173 images, the Government provided only twelve images to the military judge at the time of the appellant’s guilty pleas. Of those twelve images, the military judge determined that only three were actually contraband child pornography as defined in 18 U.S.C. § 2256(8). Judge Erdmann’s opinion explains that the military judge then found the appellant’s pleas provident as to those three images, ruling:

Counsel, having to [sic] review Prosecution Exhibit 4, I only find three images of child pornography. I find image 1229718342693.JPEG, image 1229720242042.JPEG, and image 122972147928l.JPEG meet the definition of child pornography. The balance of the images on Prosecution Exhibit 4 do not meet that definition. Given further inquiry, I do believe that the accused is guilty of the offense as charged and I stand by my findings. Although as to those three images, I think counsel would be wise to review [United States vs. Knox 32 F.3d 733 (3d Cir. 1994)], that it can be a lascivious exhibition even if the genitals and the pubic area are clothed. So, I stand by my findings.

Slip op. at 5 (modifications in original). The three images at issues are described in detail in the Army CCA’s decision. Each depicts a young girl posing provocatively in undergarments. None depicts sexual activity or full nudity.

Nevertheless, despite the absence of sexual activity, the images may still constitute child pornography as defined in 18 U.S.C. § 2256(8) if they involve a lascivious exhibition of the genitals or pubic area. Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). One of those factors is “whether the child is fully or partially clothed, or nude.” Id. And so the fact that the three images at issue in this appeal involve non-nude children is not necessarily dispositive of the issue of whether the images are child pornography.

Yet affirming the appellant’s pleas of guilty, the Army CCA went further and:

endorse[d the] reference to Knox in the Benchbook [and] offer[ed its] decision to establish precedent on a subject not yet directly addressed in a published opinion in our jurisdiction, and hold that nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area under Title 18 of the United States Code or Article 134, UCMJ.

Slip op. at 5-6 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)) (modifications in original) (emphasis added).

Knox refers to a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography: United States v. Knox, 977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I); United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737. The Army CCA adopted the holding of Knox II, applied it to the images in this case, and affirmed the appellant’s pleas.

CAAF then granted review of a single issue:

Whether the military judge erred by accepting Appellant’s pleas of guilty to the specification of the charge where Prosecution Exhibit 4 demonstrated that the images possessed were not child pornography.

With yesterday’s opinion, Judge Erdmann leads a bare majority of CAAF to conclude not only that the military judge erred in accepting this appellant’s pleas, but also that the CCA erred in adopting Knox II. In so holding, CAAF seemingly declares that non-nude images can not qualify as lascivious exhibitions.

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In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.

The appellant’s misconduct primarily involved this gruesome incident:

On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:

I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.

The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.

The appellant and his wife then took CW to the hospital. . .

Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:

The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.

After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.

After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”

Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.

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Like the page for this year’s opinions (discussed here), I’ve compiled all of CAAF’s opinions from last term onto a single page. You can access it by clicking on the September 2013 Cases link in the top navigation bar.

2013 Term

Prior terms are a future project.

In two recent decisions the Army and Air Force CCAs analyzed the military-specific rule of completeness, Military Rule of Evidence 304(h). I last analyzed this rule in this post.

In United States v. Jnbaptiste, No. 20121113 (A. Ct. Crim. App. Apr. 14, 2015) (link to slip op.), the Army CCA finds no error in the military judge’s restriction of the defense cross-examination of the appellant’s wife. The restriction prevented the defense from eliciting the appellant’s denial when his wife questioned him about their daughter’s allegation of sexual abuse. The appellant was convicted of sexually abusing the daughter.

In United States v. Rosales, __ M.J. __, No. 38502 (A.F. Ct. Crim. App. Jun. 17, 2015) (link to slip op.), the Air Force CCA finds error but no prejudice in the military judge’s application of M.R.E. 412 (the rape shield rule) to prevent the defense from introducing portions of the appellant’s statements to investigators regarding his knowledge of his wife’s extra marital sexual activities. However, the appellant was permitted to cross-examine his wife about those same activities. The appellant was convicted of assaulting and attempting to rape his wife.

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Significant military justice event this week: The Article 120 subcommittee of the Judicial Proceedings Panel will hold a meeting on Thursday, June 25, 2015, in New York City. I don’t believe that the meeting is open to the public, but additional information is available here.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF has completed its oral argument calendar for the September 2014 term.

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

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments

It’s been a long time coming, but the President has finally signed an Executive Order (number 13696) amending the Manual for Courts-Martial to incorporate the 2013 legislative changes to the UCMJ (series of posts discussing the changes available here). The EO is scheduled for publication in the Federal Register on Monday, but you can read an advance copy here.

The changes include a new R.C.M. 405 (see this discussion of the stopgap measures), various changes to implement the new Article 6b (statute discussed here and here), and a new R.C.M. 1001A that allows a victim to make an unsworn statement during sentencing that is not subject to cross-examination (proposed rule discussed here).

Astonishingly, the EO does not provide the still-missing Part IV materials for the current version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. These materials are – presumably – included in the residuum EO (discussed here) that – we can only hope – will one day get signed, but President Obama’s failure to implement Article 120 is deeply troubling. That failure was also a topic of discussion during the recent meeting of the Article 120 subcommittee of the Judicial Proceedings Panel (at which I testified) (meeting details available here).

A summary of the new EO is after the jump. The summary is taken verbatim from an excellent write-up by the Marine Corps Judge Advocate Division (it will eventually be posted here as part of Practice Advisory 9-15).

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Here is a link to a story out of the NJ National Guard where a federal jury acquitted a soldier in a case involving the alleged rape of another soldier. I think the words of a senior judge advocate that shared their reaction pretty much sums things up:

A federal prosecutor, the best of the best, couldn’t get a conviction on the exact type of case we deal with day in and day out. Maybe we need to change the rules in federal court. 

I’ll be on the lookout for my new Federal Rules of Criminal Procedure. 

CAAF decided the Navy case of United States v. Woods, __ M.J. __, No. 14-0783/NA (CAAFlog case page) (link to slip op.) on Thursday, June 18, 2105. The court concludes that the military judge erred in denying the appellant’s challenge of a member who initially believed that the military employs a guilty-until-proven-innocent standard. Finding implied bias, CAAF reverses the decision of the NMCCA and the appellant’s conviction.

Chief Judge Baker writes for a nearly-unanimous court. Judge Stucky concurs in the result, but he concludes that the member should have been excused for actual bias, not implied bias.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual assault in violation of Article 120, UCMJ (2006). He was sentenced to confinement for five months, total forfeitures, and a dismissal. The NMCCA affirmed the findings and sentence.

CAAF granted review of a single issue:

Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

More than half of Chief Judge Baker’s opinion is dedicated to reproducing portions of the member’s questionnaire, voir dire responses, and the military judge’s rulings on the appellant’s challenge. It begins:

in advance of Appellant’s trial, CAPT Villalobos completed a court-martial member questionnaire. In response to an open-ended question regarding her view of the military justice system, CAPT Villalobos provided the response at issue in this appeal:

[Q.] What is your opinion of the military’s criminal justice system?

[A.] There is not [a] perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission. It is a voluntary force and you come into the service knowing that you will be held to this higher standard[] and give up your civil rights.

Slip op. at 4 (marks in original). The defense challenge the member but the military judge denied the challenge, ruling in part that:

With respect to Captain Villalobos, I have specifically considered the liberal grant mandate and examined her answers for actual bias as well as implied bias. I am going to focus here for a minute on her answers to the member’s questionnaire pertaining to what the relevant burden of proof is in a court-martial. It’s absolutely the case that she did arrive at this court-martial under a misapprehension of what the burden of proof is at a court-martial. I don’t find that to be disqualifying. I evaluated her demeanor as she answered questions. When I asked her candidly “Did you — were you under the impression that that was the relevant standard in these cases,” and she says “Yes,” and she acknowledged that that was a misapprehension on her part.

Slip op. at 8.

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The Air Force CCA reached two interesting conclusions in United States v. Bischoff, __ M.J. __, No. 37731 (A.F. Ct. Crim. App. Feb. 19, 2015) (link to slip op.). The first involves an issue of member bias; the second involves a question of prejudice for post-trial delay where the appellant’s sentence included a year of confinement, the appellant served all of the confinement, the CCA ordered a sentence rehearing, and then appellant received a sentence that included no confinement.

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LA Times story here.

Yesterday, CAAF issued the following order:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  On consideration of Appellee’s motion to file an extension of time out of time and motion to extend time to file an answer to the writ-appeal petition, it is ordered that said motions are hereby granted, and that Appellees will file an answer to the writ-appeal petition on or before June 22, 2015.

(emphasis added). I discussed Bergdahl’s petition in this post.

Notably, CAAF’s rule 28(b)(2) appears to compel an answer to a writ-appeal petition within ten days of the filing of a petition:

(2) The appellee’s answer to a writ-appeal petition shall be filed no later than 10 days after the filing of the appellant’s writ-appeal petition.

To my knowledge, the Government routinely fails to answer writ-appeal petitions (without consequence).