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 next scheduled oral argument at the Army CCA is on June 8, 2015.

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.

The Religious Freedom Restoration Act (RFRA), as modified by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000bb – 2000bb-4, was the central theme in the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, (2014). Attorney Paul Clement represented the private parties who sought an exemption from the contraception coverage requirements of the Affordable Care Act. Mr. Clement is now part of an effort to apply RFRA to military orders, appearing pro hac vice on behalf of a Marine Corps appellant who is seeking CAAF review of her court-martial conviction for an orders violation.

The case is United States v. Sterling, No. 15-0510/MC. The NMCCA’s decision is available here. The supplement to the petition for grant of review by CAAF is available here.

Back in 2013, in this post, I wrote about the Air Force case of United States v. Carr, No. 38025 (A.F. Ct. Crim. App. Aug 15, 2013), where the convening authority initially disapproved the adjudged bad-conduct discharge, but then the Air Force CCA went to considerable lengths to allow the convening authority to correct that action and approve the discharge.

Now the Coast Guard CCA addresses similar errors in a convening authority’s action that violated the terms of a pretrial agreement:

For a third time, the action suspends confinement in excess of ten months, even though the pretrial agreement called for disapproval of confinement in excess of ten months. Appellant has consistently pointed out this flaw, and the Convening Authority, with the advice of the Staff Judge Advocate, has persisted in this violation of the pretrial agreement. Inexplicable as this violation appears, we are confident that the suspension has not been vacated, else Appellant would have complained further. Though given repeated opportunities to conform the Convening Authority’s action to the terms negotiated, the Government has failed to do so. We do not condone the Government’s failure in this regard, but we are not inclined to remand again in the hope that the Government will at last give attention to and correct this obvious error. No action is needed beyond our disapproval of confinement in excess of ten months.

The approval of confinement beyond the limit set in the pretrial agreement is not the only flaw in the Convening Authority’s action. Again, for a third time, the action provides that automatic forfeitures will be deferred for six months. This provision bespeaks ignorance of the vocabulary of the UCMJ.

United States v. Matthews, No. 1382, slip op. at 3 (C.G. Ct. Crim. App. May 20, 2015) (emphases added) (link to slip op.).

This being the third time the CCA considered the case (the first was in a published opinion that I discussed here; the second resulted in a summary remand without written opinion, ostensibly to fix this error), the CCA simply gives up and fixes the problem itself:

Appellant now moves again for remand for a corrected convening authority action, and for leave to file this motion. The motion for leave to file is granted. The motion for remand is denied. We have the power under Article 66, UCMJ, to correct the flaw in the Convening Authority’s action without another remand.

Slip op. at 4. However, the CCA only conforms the sentence to the terms of the pretrial agreement. It grants no actual relief to the appellant, either for the Government’s “persiste[nce] in this violation of the pretrial agreement,” slip op. at 3, or for the one year, eleven months, and eight days between the date of the guilty plea and the completion of the CCA’s review.

In a published opinion in United States v. Fowler, __ M.J. __, No. 20121079 (A. Ct. Crim. App. Apr. 30, 2015) (link to slip op.), a three-judge panel of the Army CCA tackles a claim of a double jeopardy violation in a military judge’s premature announcement of findings.

Writing for the panel, Judge Krauss explains that:

Charged with desertion, appellant pled guilty to the lesser-included offense of absence without leave (AWOL) in violation of Article 86, UCMJ. The judge advised appellant that his “plea of guilty to a lesser included offense may also be used to establish certain elements of the charged offense if the government decides to proceed on the charged offense.” The judge did not ask and the trial counsel did not declare whether the government intended to proceed on the greater charge.

Upon acceptance of that plea, the judge announced findings: “To the Specification of The Charge: Guilty, except the words, ‘and with the intent to remain away therefrom permanently’ and ‘in desertion.’ Of the Charge: Not Guilty, but guilty of a violation of . . . Article 86.”

Slip op. at 2. The trial counsel then noted that the Government was still pursuing the greater offense of desertion in violation of Article 85, and it introduced evidence that proved that the appellant had the requisite intent for desertion. The military judge then convicted the appellant of desertion.

On appeal, the appellant claimed that this amounts to a violation of the prohibition against double jeopardy. Rejecting this challenge and affirming the conviction, Judge Krauss writes:

An announced finding of “not guilty” amounts to an acquittal if it effects a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). An acquittal is “a finding that the [government]’s evidence cannot support a conviction.” Martinez v. Illinois, 134 S. Ct. 2070, 2076 (2014).

Of course, the objective of a court -martial is a fair trial. Our adversarial system, by its very nature, requires that each party enjoy an opportunity to present its respective case to the factfinder. A military judge possesses no authority to prevent the United States from attempting to prove the charge it has otherwise properly referred to trial by court-martial by peremptorily announcing a finding of not guilty. [citations omitted -zds]

Any such declaration of not guilty is ineffective. This is true whether the judge makes such announcement on purpose or by mistake. See United States v. Downs, 4 U.S.C.M.A. 8, 11-12, 15 C.M.R. 8, 11-12 (1954); Greening, 54 M.J. at 832; see also United States v. Boswell, 8 U.S.C.M.A. 145, 149, 23 C.M.R. 369, 373 (1957) (when announcement of not guilty is a “slip of the tongue” it c an be corrected); R.C.M. 922(d); R.C.M. 1102(c)(2).

Here the military judge erroneously announced a finding of not guilty to the charged desertion before the government was given an opportunity to prove that charge. It appears that the judge, in the moment, did indeed intend to make that announcement; however, it is also quite plain from the record that the judge did not intend to prevent the government from proceeding. In any event, under circumstances such as these, it matters not whether the judge intended to announce a finding of not guilty. A finding of not guilty announced before the government enjoys a proper opportunity to prove its case does not constitute an acquittal. See Martinez, 134 S. Ct. at 2076-77.

Slip op. at 3-4.

CAAF granted review in two cases on Thursday, May 14, 2015. The first involves an issue of disparate punishment:

No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345.  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 specified by the Court:


Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website.

The second involves a specified issue that question’s the court’s jurisdiction to consider the case:

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.  On consideration of Appellee’s motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:


Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.

In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a deeply divided CAAF held that the court lacks jurisdiction to consider a petition for grant of review filed by an appellant beyond the 60-day period during which Article 67(b) states that an appellant “may” file such a petition. Judge Erdmann wrote for the court in Rodriguez, joined by Judges Stucky and Ryan. Then-Chief Judge Effron and then-Judge Baker both dissented. You can read some analysis of the case in posts here and here.

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a timely petition for reconsideration at a CCA, the 60-day time period to petition CAAF for review begins after the CCA completes its action on the petition for reconsideration.

LaBella finds what might be the only daylight between Smith and Rodriguez, and CAAF’s order for expedited briefings is particularly noteworthy in light of the fact that Chief Judge Baker’s 15-year term on the court will end in September.

Readers may also recall that after it was reviewed by the Supreme Court, the Denedo case ended with a missed deadline.

CAAF decided the Navy case of United States v. Castillo, __ M.J. __, No. 14-0724/NA (CAAFlog case page) (link to slip op.), on Monday, May 18, 2015. The court rejects Appellant’s two-fold challenge the Navy’s current requirement that its members self-report to military authority any arrest or initiation of criminal charges by civilian authorities. Finding that the Navy created the requirement in direct response to CAAF’s decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), and rejecting Appellant’s hypothetical applications as insufficient to sustain a facial challenge to the regulation, CAAF confirms the validity of the requirement, affirming the decision of the Navy-Marine Corps CCA.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court improperly determined that [the] duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.

The Navy has long required that its members report offenses punishable under the UCMJ. See Article 1137, U. S. Navy Regulations; United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976) (discussing predecessor Article 1139); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (discussing both). The Navy has also enforced various requirements that members report matters related to their own potential misconduct. But the Navy-Marine Corps Court of Criminal Appeals invalidated one such requirement in United States v. Serianne, finding that an order for Navy personnel to self-report alcohol-related arrests by civil authorities compelled an incriminatory testimonial communication in violation of the Fifth Amendment and contrary to the then-existing language of Article 1137, U.S. Navy Regulations, and CAAF affirmed on the basis of Article 1137 without reaching the constitutional issue. 68 M.J. 580 (N-M. Ct. Crim. App. 2009),aff’d, 69 M.J. 8 (C.A.A.F. 2010).

After Serianne, the Navy revised Article 1137 to explicitly authorize regulations that “require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.” ¶ 2.3, ALNAV 049/10 (Jul. 21, 2010). Other regulations followed, including a change to the Navy’s Standard Organization and Regulations Manual to include the following self-reporting requirement:

Any person arrested or criminally charged by civil authorities shall immediately advise their immediate commander of the fact that they were arrested or charged.

¶ 4.c, NAVADMIN 373/11 (Dec. 8, 2011) (amending ¶ 510.6, OPNAVINST 3120.32C (2005), superseded by ¶ 5.1.6, 3120.32D (Jul. 16, 2012)) (available here).

Appellant ran afoul of this new requirement:

In February 2012, Appellant was arrested in Kitsap County, Washington for driving under the influence.3 She did not report the arrest to her command. Her command learned of the arrest during an unrelated visit to the local courthouse, during which one of her supervisors noticed her name on the court’s docket. She was subsequently charged with violating a lawful order, to wit, wrongfully failing to report the arrest, in violation of Article 92, UCMJ.

Slip op. at 7. Appellant challenged the legality of the requirement at trial and again on appeal at the NMCCA, asserting that the arrested-or-charged reporting requirement conflicts with Article 1137, U.S. Navy Regulations (superior regulatory authority), and that it violates the Fifth Amendment. Both arguments failed at trial and at the NMCCA, and now they fail at CAAF.

Read more »

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 next scheduled oral argument at the Army CCA is on June 8, 2015.

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.

Below is the entire text of an open letter purportedly written by a female enlisted member of the United States Air Force. The original is posted here.

Maybe this letter is real, and maybe it’s a work of fiction; but its sentiment is undeniably true. The only certainty in the politicization of the military’s response to sexual assaults is that there will be victims.

Dear SARC,

I got up this morning as an Airman in the United States Air Force. I got up and I put on my uniform, I pulled back my hair, I looked in the mirror and an Airman looked back. A strong, confident military professional stared out of my bathroom mirror, and I met her eyes with pride. Then I came to your briefing. I came to your briefing and I listened to you talk to me, at times it seemed directly to me, about sexual assault. You talked about a lot of things, about rivers and bridges, you talked about saving people and victimization. In fact you talked for almost a full ninety minutes, and you disgusted me.

You made me a victim today, and I am nobody’s victim. I am an American Airman in the most powerful Air Force in the world, and you made me into a helpless whore. A sensitive, defenseless woman who has no power to protect herself, who has nothing in common with the men she works with. You made me untouchable, and by doing that you made me a target. You gave me a transparent parasol, called it an umbrella and told me to stand idly by while you placed everything from rape to inappropriate shoulder brushes in a crowded hallway underneath it. You put my face up on your slides; my face, my uniform, my honor, and you made me hold this ridiculous contraption of your own devising and called me empowered. You called me strong. You told me, and everyone else who was listening to you this morning that I had a right to dictate what they said. That I had a right to dictate what they looked at. That I had a right to dictate what they listened to. That somehow, in my shop, I was the only person who mattered. That they can’t listen to the radio because they might play the Beatles, or Sir Mix-A-Lot, and that I might be offended. That if someone plays a Katy Perry song, I might have flashbacks to a night where I made a bad decision. I might be hurt, and I’m fragile right? Of course I am, you made me that way.

You are the reason I room alone when I deploy. You are the reason that wives are terrified that their husbands are cheating on them when they leave, and I leave with them. When I walk into a room and people are laughing and having a good time, you are the reason they take one look at me and either stop talking or leave. They’re afraid. They’re afraid of me, and it’s because of you. They are afraid that with all of this “power” I have, I can destroy them. They will never respect me or the power and the authority I have as a person, or the power I have as an Airman, because I am nothing more than a victim. That I as a victim, somehow I control their fate. With one sentence, I can destroy the rest of their lives.

“He sexually assaulted me.”

I say enough. He didn’t assault me, you did; and I say enough is enough. If you want to help me, you need to stop calling me a victim. If you want to save me, you need to help me to be equal in the eyes of the people I work with. If you want to change a culture, you need to lessen the gap between men and women, not widen it. Women don’t need their own set of rules: physical training scores, buildings, rooms, raters, sponsors, deployment buddies. When I can only deploy with another woman ‘buddy’ you are telling me and the people around me that I can’t take care of myself. When you forbid me from going into my male friends room to play X-Box on a deployment with the other people on my shift, you isolate me. When you isolate me, you make me a target. When you make me a target, you make me a victim. You don’t make me equal, you make me hated. If I am going to be hated, it will be because of who I am, not because of who you have made me. I am not a victim. I am an American Airman, I am a Warrior, and I have answered my nation’s call.

Help me be what I am, or be quiet and get out of my way.

CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.

So it seems that the 2014 term’s oral argument calendar is complete. CAAF heard 36 arguments this term. CAAF’s FY14 annual report shows how this number of arguments compares to prior years:

FY14 Oral Arguments Per Year

The court issued decisions in half (18) of those. Here is a brief synopsis of the issues in the undecided 18 cases (listed in the order argued):

Read more »

The Military Times recently published an article (available here) analyzing the DoD’s Fiscal Year 2014 annual report on sexual assault in the military (available here). The article is largely number-crunching, but the title is outright inflammatory:

Military sexual assault claims: 1 in 20 lead to jail time

One can only imagine how the various activist organizations are salivating over this headline, as it implies a miserably low rate of punishment for military sexual offenders. But intelligent observers will approach this report with caution.

The 1-in-20 statistic comes from the following analysis in the Military Times article:

Last year, 6,131 service members reported a sexual assault.

But only about 317 service members were court-martialed and sentenced to confinement as a result of a reported sexual assault.

While it’s true that 317 is 5.17% of 6,131, those numbers have little to do with actual punishments for sexual assault, for three reasons.

First, the Department of Defense remains incapable of giving a succinct and rational definition of sexual assault. The first footnote in the FY14 report states:

Department of Defense Directive 6495.01 defines sexual assault as intentional sexual contact characterized by use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent. The crime of sexual assault includes a broad category of sexual offenses consisting of the following specific Uniform Code of Military Justice offenses: rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy (forced oral or anal sex), or attempts to commit these offenses.

This definition is so vague that it is dangerous. Not only does this definition fail to provide an outer limit to the meaning of the term sexual contact (something CAAF is currently considering in the interlocutory Army case of United States v. Schloff, No. 15-0294/AR (CAAFlog case page), but it also uses the amorphous term cannot consent. Some people hold the nonsensical belief that a person cannot consent to sexual activity after consuming just one sip of alcohol. Undoubtedly, some such encounters found their way into the DoD report.

Read more »

The Courts of Criminal Appeals rarely invoke their factual sufficiency powers to reverse a conviction. Unlike legal sufficiency, which questions “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt,” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F.2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis added), factual sufficiency review involves the CCA’s independent conclusion about the evidence. It is a unique power granted by Article 66(c):

[A CCA] may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

The Air Force CCA recently exercised that unique power, in United States v. Wilkinson, No. 32218 (A.F. Ct. Crim. App. May 11, 2015) (link to slip op.):

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In re Winshop, 397 U.S. 358, 363–64 (1970). In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens,2 our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary authority.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient. However, in this instance, we simply are not personally convinced that the appellant is guilty of the charged offenses.

Slip op. at 3.

CAAF decided the Air Force case of United States v. Torres, __ M.J. __ No. 14-0222/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 12, 2015. The court unanimously finds that the military judge erred in instructing the members on the defense of lack of mental responsibility when Appellant asserted the defense of automatism in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure. However, the court splits 3-2 to find this error harmless, affirming the findings, sentence, and the decision of the Air Force CCA.

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

CAAF granted review of a single issue:

Whether the military judge erred by denying the defense requested instruction.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

The aggravated assault specification alleged that Appellant assaulted his wife by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” Slip op. at 2. Appellant’s defense was that he suffered a seizure and his actions were involuntary. Specifically:

Appellant sought to show that he had an epileptic seizure on the morning of May 13, 2008, and that he thus was experiencing an altered state of consciousness when he assaulted his wife. Appellant further asserted that this altered state of consciousness rendered his actions involuntary, and argued that the Government had therefore failed to prove that his conduct “was done with unlawful force or violence” as required for aggravated assault.

Slip op. at 4 (emphasis in original) (citation omitted). Appellant’s defense counsel also asked the military judge to instruct the members that they must be “satisfied beyond a reasonable doubt that the accused, at the time of the alleged offense acted voluntarily” in order to convict him. Slip op. at 5 (quoting record).

However, the military judge refused to give the instruction requested by the defense. Rather, the military judge instructed the panel consistent with the affirmative defense of lack of mental responsibility, and “consistent with this affirmative defense, the military judge further instructed the panel that if it concluded that the Government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct.” Slip op. at 5.

CAAF holds that the military judge erred in giving this instruction, though it acknowledges that military law is not exactly clear on how to handle a defense of automatism:

Thus, as noted above, at the time of trial in the instant case, the state of the law was not particularly clear in regard to whether automatism should be viewed as potentially negating an accused’s mens rea, or potentially negating the actus reus, or both. What was clear, however, was that neither epilepsy nor automatism constituted a mental disease or defect and this Court has never held that the affirmative defense of lack of mental responsibility applies in these cases. Indeed, we find it was error for the military judge in the instant case to instruct the panel in that manner.

Slip op. at 7-8 (emphasis in original).

Read more »

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page): Oral argument audio.

United States v. Quick, No. 15-0347/MC (CAAFlog case page): Oral argument audio.

In United States v. Christopher, No. 201500066 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.), writ-appeal filed, __ M.J. __ (C.A.A.F. May 8, 2015), the NMCCA denied the accused’s petition for a writ of mandamus that would order the charges dismissed on the basis that a court-martial does not have personal jurisdiction over the accused. The petitioner is on the Permanent Disability Retirement List (PDRL), and he is charged with offenses that allegedly occurred before his transfer.

The CCA’s analysis is brief:

In ruling on the defense’s Motion to Dismiss for Lack of Jurisdiction, the military judge assumed arguendo that the petitioner’s transfer to the PDRL was valid and, citing Article 2(a)(4), UCMJ, found that as a “[r]etired member[] of a regular component of the armed services who [is] entitled to pay,” he is subject to UCMJ jurisdiction. She is correct: Article 2(a)(4), UCMJ, confers in personam jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. See also Pearson v. Bloss, 28 M.J. 376, 377-78 (C.M.A. 1989).

Slip op. at 5.

I analyzed the CCA’s decision in this post. CAAF granted review last Thursday:

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545.  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 specified by the Court:


Briefs will be filed under Rule 25.