I missed it, but thought we’d post a link to the very quiet retirement of a general accused of “sexual misconduct.”  Stars and Stripes article, here, about the retirement of Maj. Gen. Ralph O. Baker.  Here is a link to prior coverage of allegations of sexual assault against now Brigadier General Baker.

The link, here, isn’t working and directs you to the address http://nomorearticle31blog.wordpress.com/.  If it has gone the way of . . . sequestration (?) . . . it would be nice if TJAG School could at least allow all the prior posts to be accessible.

H/T OFFL

Here is a link to a federal register notice of a meeting of the Judicial Proceedings Panel scheduled for November 14, 2014, at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203.

I discussed the DoD’s establishment of the panel in this post. The panel’s website is: http://jpp.whs.mil/

CAAF granted review in three cases last week:

No. 14-0656/AR.  U.S. v. Dana P. BLOUIN.  CCA 20121135.  On consideration of the petition for grant of review of the decision for 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 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.

Briefs will be filed under Rule 25.

Phil discussed the Army CCA’s opinion affirming the guilty plea in this post. The CCA’s opinion is available here.

No. 14-0660/AR.  U.S. v. Michael C. BUDKA.  CCA 20120435.  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:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY VIOLATING THE PRINCIPLE OF PARTY PRESENTATION WHEN IT SUMMARILY AFFIRMED THE FINDINGS AND SENTENCE AFTER THE GOVERNMENT CONCEDED THAT THE FACTUAL PREDICATE FOR THE OFFENSE OF AGGRAVATED ASSAULT WAS NOT MET.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO THE SPECIFICATION OF CHARGE II-AGGRAVATED ASSAULT-WHERE THERE IS A SUBSTANTIAL BASIS TO QUESTION THAT THE FORCE USED WAS A MEANS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

Briefs will be filed under Rule 25.

The CCA affirmed without a written opinion.

No. 14-0792/AR.  U.S. v. Collin J. CARTER.  CCA 20121046.  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 ABUSED HER DISCRETION BY PREVENTING DEFENSE COUNSEL FROM PRESENTING FACTS OF APPELLANT’S UNLAWFUL PRETRIAL PUNISHMENT AS MITIGATION EVIDENCE AT SENTENCING.

Briefs will be filed under Rule 25.

The CCA affirmed without a written opinion.

KTUU.com Anchorage reports, here, that an  Alaska-based soldier’s court-martial  on murder and rape charges will begin next Monday at Joint Base Lewis McChord.  Sgt. Nathaniel Ulroan is charged with the premeditated murder of his three year old son and the rape of his wife. AP (via S&S) coverage here.

Former USAFA Cadet convicted of abusive sexual contact raises profile as standout on Alcorn Srltate football squad, ABC News coverage here. The article has some commentary on the Mil Jus system’s handling of Cadet Cooks’ case and sexual assault cases in general. Prior coverage here.

In a per curiam opinion in United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.), a three-judge panel of the NMCCA reverses a plea of guilty to adultery in violation of Article 134, with this important reminder:

In 2002, the President issued Executive Order 13,262, 67 F.R. 18773, 18778 (2002), amending the MCM to create a separate explanation of the terminal element unique to adultery offenses. See United States v. Jonsson, 67 M.J. 624 (C.G.C.C.A. 2009). Since then, the MCM provides, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember.” MCM (2012 ed.), Part IV, ¶ 62c(2). “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Id. The explanation then goes on to provide a non-exhaustive list of factors to consider when determining whether adulterous acts are prejudicial to good order and discipline or service discrediting.

This new explanation operated to narrow the scope of adultery as an offense under the UCMJ.

Slip op. at 5. The CCA reversed the plea after finding that military judge failed “to ensure the appellant understood the meaning of prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces not only in a generic Article 134 sense, but in the narrower sense defined by the President specifically for the offense of adultery.” Slip op. at 6 (marks omitted).

A case in the Air Force out of Dover AFB. Civilian prosecutors dropped a child sexual abuse case, but the military pushed forward. Air flforce Times has the report on SGTbJesus Munoz’s acquittal here. The Sergeants attorney’s spin:

“We presented housing and deployment records” at the trial, Waddington said. When the child testified, “he admitted he and his mother had been practicing a long time what he should say [on the stand]. … He said that if he didn’t come up with something, [he] was going to get in a lot of trouble.”

Patrick Air Force base public affairs had not responded Monday to an Oct. 24 request to speak to the prosecutor on the case.

Does this make the system look better or worse that it takes cases civilians refuse to prosecute and then the prosecution loses the case?  Because it happens in the sexual assault area a lot.

Iraq war deserters still in Canada, Winnipeg News reports here.

The Air Force is investigating how Chief Master Sergeant Eric Soluri was promoted three times after being convicted and serving jail time for a domestic violence offense. AF Times report here.

MSGT Timothy Hennis files ex write at CAAF, FayObs report here. Hennis, for our occasional reader, was tried three times for the murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty.  She was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.  Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.  After advances in DNA revealed new evidence implicating Hennis, the military recalled him from the retired list to try him–his recall and the question of jurisdiction is the source of his ex writ–where he was convicted and sentenced to death.   See the rest of the story at our Top 10 post here.

Thanks to all of our zombie contributors for correcting my hastily posted prior version–it is your week and all.

The Coast Guard CCA’s unpublished opinion in United States v. Sullivan, No. 20140925 (C.G. Ct. Crim. App. Sep. 25, 2014) (link to unpub. op), is notable for a number of reasons. For starters, the case involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence does not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d).

The CCA considered numerous assertions of error, ultimately rejecting them and affirming the findings and sentence. One assertion of error – involving the rebuttal testimony of a Government witness – caught my attention.

The charge against the appellant was based on a positive urinalysis result. The appellant’s defense was based on the assertion that his wife’s drug use resulted in the appellant’s “innocent and unwitting exposure to cocaine.” Slip op. at  12. In support of this assertion, the appellant’s wife “testified during the defense case concerning her procurement, storage and consumption of cocaine.” Slip op. at 12. But in the Government’s case in rebuttal:

Inspector D, a Senior Inspector for the Contra Costa County District Attorney’s Office, was offered and qualified as an expert in street-level narcotics. (R. at 1957.) He testified, based on his experience as an undercover investigator, concerning the standard process for purchasing powder cocaine, and typical practices for using powder cocaine. (R. at 1959-69.) His descriptions differed in several ways from Appellant’s wife’s descriptions of her experience and practices.

Slip op. at 11. The Defense objected to the expert’s testimony. The CCA explains that “the military judge conducted a lengthy Article 39(a) session—which included a full preview of Inspector D’s testimony—and heard extensive argument from counsel before determining that Inspector D had specialized knowledge that would be helpful to members charged with determining the facts of the case,” but it does not otherwise describe the judge’s reasoning in permitting the testimony. Slip op. at 12.

What immediately comes to mind is last term’s decision in United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul 8, 2014) (CAAFlog case page), where a divided CAAF reversed a conviction for aggravated sexual assault after determining that the judge failed to conduct the appropriate analysis prior to allowing a former sexual assault response coordinator to testify as an expert witness, and that the record ultimately did not support allowing such testimony. In particular, Judge Ohlson’s opinion of the court focused on the six-part test from United States v. Houser:

(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.

Flesher, slip op. at 14 n.3 (citing Houser, 36 M.J. 392, 397 (C.M.A. 1993)). In Sullivan, the Coast Guard court doesn’t explain what – if any – analysis the judge conducted using these factors, and it seems like the testimony is unlikely to satisfy at least some of these factors. Instead, the CCA’s opinion focuses on value of the testimony for impeachment of the appellant’s wife.

Read more »

About two months ago, in this post, Phil discussed the Army CCA’s decision that rejected a Government interlocutory appeal in United States v. Muwwakkil, No. 20140536 (A. Ct. Crim. App. Aug. 26, 2014) (link to unpub. op.). The appeal was of a military judge’s ruling that stuck the entire testimony of an alleged victim of rape. The military judge struck the testimony because the Government lost the recording of the alleged victim’s testimony at the Article 32 pretrial investigation. Affirming the judge, the CCA reasoned:

The government concedes simple negligence for the loss of the recording, but contends that any finding of gross negligence is clearly erroneous. However, as the government correctly points out, the judge never did make a clear finding of gross negligence. In any event, the judge’s finding that the government’s loss of the required statement was due to its negligence is amply supported by evidence in the record and necessarily triggers the totality of circumstances test described above to determine an appropriate remedy for the Jencks Act violation.

There is no evidence that the government destroyed the statement in “good faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at 376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the government simply disagrees with the judge’s exercise of her discretion as to the proper remedy. Any disagreement any of us might have with the judge’s exercise of discretion under these circumstances is no basis for relief under Article 62. See Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’”) (citation omitted). Indeed the law demands that we respect and defend the reasoned exercise of a trial judge’s discretion in cases such as these and so we do here.

Slip op. at 6-7.

Last Monday, October 20, the Judge Advocate General of the Army certified the case to CAAF:

No. 15-0112/AR. U.S. v. Tahir L. MUWWAKKIL. CCA 20140536. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22, together with a motion to stay the proceedings on this 20th day of October, 2014, on the following issues:

I. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS APPLICATION OF BOTH THE FEDERAL JENCKS ACT (18 U.S.C. § 3500) AND RULE FOR COURTS-MARTIAL 914.

II. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS DEFERENCE TO THE MILITARY JUDGE’S FINDINGS AND CONCLUSIONS, AS SHE FAILED TO CONSIDER THE TOTALITY OF THE CASE, AND INSTEAD MADE A PRESUMPTION OF HARM BEFORE ORDERING AN EXTRAORDINARY REMEDY. SEE, e.g., KILLIAN v. UNITED STATES, 368 U.S. 231 (1961).

On consideration thereof, it is ordered that the motion to stay proceedings is hereby granted. Appellee will file an answer to the certified issues under Rule 22(b)(1) on or before October 30, 2014

While this is an interesting case on its own facts, the second certified issue is really interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs when it reviews the underlying ruling of the military judge in an interlocutory appeal. See United States v. Wicks, 73 M.J. 93, __, slip op. at 10-11 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page) (“In an Article 62, UCMJ, petition, this Court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial. . .”).

As for the Government’s concern about a presumption of harm, I’ll be interested to see how CAAF applies United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978) (“It suffices to say that, in the present case, the requested materials were not preserved for the record as required by 18 U.S.C s 3500(c) . This factor alone distinguishes it from those cases cited by the Court of Military Review as support for the application of the harmless error rule.”)

I inadvertently omitted an important military justice event from yesterday’s This Week in Military Justice post.

A public meeting of the Joint Service Committee will be held on Wednesday at CAAF, beginning at 10 a.m. The purpose of the meeting is to discuss the proposed amendments to the Manual for Courts-Martial (discussed here).

I’m planning to attend the meeting. I look forward to meeting any readers who might also be there.

In United States v. Petee, No. 20130128 (A. Ct. Crim. App. Sep. 24, 2014) (link to unpub. op.), a three-judge panel of the Army CCA rejects the appellant’s guilty plea to assault consummated by a battery in violation of Article 128. The charge was “based on the fact that [the appellant] injected dilaudid [a Schedule II controlled substance with the generic name of hydromorphone] into the arm of a minor who asked him to do it.” Slip op. at 2. But the plea was based on an odd premise:

During the providence inquiry, the military judge premised appellant’s guilty plea on the notion that “a person may not lawfully consent to having something done to them that is unlawful” and that “a person cannot lawfully consent to an unlawful touching.”

Slip op. at 2. The CCA rejects this premise:

The parties do not offer, and we do not find, any authority to embrace such a broad diminution of the consent defense to simple battery. We recognize the possibility that one might providently plead guilty to a charge of simple battery under these circumstances. However the legal premise of such a plea would be based on the notion that such activity is sufficiently offensive to public order as to permit liability under Article 128. See generally United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997); United States v. Arab, 55 M.J. 508 (Army Ct. Crim. App. 2001). An accused might admit that the act of injecting a potentially injurious illegal drug into the arm of a drunken minor is sufficiently offensive to the public generally as to permit conviction under Article 128. However, neither that legal premise, nor reference to those facts as the basis for criminal liability in that context, was discussed with appellant. Therefore, we hold that appellant’s plea to this offense is insufficiently intelligent to warrant its acceptance. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

Slip op. at 2.

This week at SCOTUS: The Solicitor General waived the right to respond in Wickware. 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 argument at CAAF is on November 18, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 25, 2014.

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.

On Wednesday a three-judge panel of the AFCCA granted a Government interlocutory appeal and reversed a military judge’s ruling that dismissed charges with prejudice in a sexual assault general court-martial. The case is United States v. Arma, No. 2014-09 (A.F. Ct. Crim. App. Oct. 22, 2014) (link to slip op.).

Of note, the opinion indicates that the case was heard on oral argument, but I never saw it on the court’s electronic docket on its webpage (and I check weekly, for TWIMJ). Additionally, no argument audio is posted.

The case involves two allegations that the appellee sexually assault another Airman “with whom he had had a brief dating relationship.” Slip op. at 2. One alleged assault occurred during the relationship, another after the relationship ended.

During the pretrial process the Government and the Defense sparred over discovery issues, including production by the Government of records related to a polygraph examination taken by the appellee and “potentially exculpatory Facebook messages.” Slip op. at 2. This caused a number of delays. There were also concerns about the preferral of the charges, as the accuser (the person who signed the charges) “struggled with the difference between incapacitation and impairment, relied on the legal office for information and advice, and in hindsight believed he should probably have personally reviewed the videos of the witnesses’ statements prior to preferral.” Slip op. at 4. Finally, there were issues with the Defense attempt to interview the husband of the alleged victim (it’s unclear if the marriage existed at the time of the alleged assaults). Specifically, the military judge found:

(1) that the alleged victim’s current husband refused to answer, in a pretrial interview with trial defense counsel, questions related to communications between himself and the alleged victim; (2) that his refusal was based on his perceived spousal privilege because of advice relayed either directly or indirectly from the alleged victim’s assigned special victims’ counsel; and, (3) that the husband did answer questions posed by Government counsel related to communications with the alleged victim.

Slip op. at 5. Because of all of this, the Defense moved to dismiss due to “failure to disclose and produce evidence, and witness tampering,” slip op. at 2, and the military judge ruled:

[B]ased on the totality of circumstances in this case to date, the failure to generally provide discovery in a timely manner or at all, the disregard of the 7 February 2014 lawful judicial order, witness tampering either intentionally or unintentionally by the [special victims’ counsel for the alleged victim], the [R.C.M.] 307(b) requirements for preferral not being met and lastly, the prejudice suffered by the Accused by what was previously mentioned… all actions or inactions on the part of the Government and under the 6th Amendment, the defense Motion to Dismiss is GRANTED WITH PREJUDICE.

Slip op. at 4. But the CCA finds that the judge abused her discretion in dismissing the charges with prejudice.

Read more »

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

United States v. Peters, No. 14-0289/AR (CAAFlog case page): Oral argument audio.

United States v. Castillo, No. 14-0457/AR (CAAFlog case page): Oral argument audio.

Last term, in United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. June 13, 2014) (CAAFlog case page), CAAF explained that “the victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” 73 M.J. at 301.

In a published opinion issued last week in United States v. Endsley, __ M.J. __, No. 20130052 (A. Ct. Crim. App. Oct. 17, 2014) (link to slip op.), the Army CCA applies CAAF’s decision in Cimball Sharpton to affirm the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

The CCA highlights the debit nature of the transaction, distinguishing “credit card transactions, [where] an item is obtained via a loan or line of credit offered by the card issuer to the cardholder,” from “a debit card [where one] obtains those goods in exchange for money which results in an immediate deduction from the cardholder’s account.” Slip op. at 4. However, the CCA acknowledges that last term CAAF summarily reversed a similar determination in United States v. Gaskill, No. 20110028 (A. Ct. Crim. App. Aug. 12, 2013) (link to slip op.), rev’d in part, 73 M.J. 207 (C.A.A.F. Jan. 27, 2014). The CCA notes “difficulty reconciling Gaskill with Lubasky or Cimball Sharpton.” Slip op. at 4. Yet the CCA doesn’t acknowledge the distinguishing factor of an agency relationship that allowed CAAF to affirm larceny convictions in Lubasky and Cimball Sharpton while rejecting the larceny conviction in Gaskill. Rather, the CCA affirms in Endsley on the basis that the other soldier’s “money was stolen and those stolen funds were used by appellant to obtain goods.” Slip op. at 5.

But I don’t think the facts of Endsley are so clear-cut, and I think the CCA got it wrong. The other soldier was not the victim of the appellant’s larceny.

Read more »