CAAF today released this opinion in United States v. Ayala, No. 10-0013.  Judge Stucky wrote the opinion of the court, which Judges Baker and Ryan joined.  Chief Judge Effron wrote a dissent, which Judge Erdmann joined.

15 Responses to “CAAF affirms Air Force Court in Ayala”

  1. Southern Defense Counsel says:

    Interesting. Not often that you see a CA pull the SJA’s posterior out of the fire.

  2. Anonymous says:

    Oy vay! Two Crawford-like, govt-friendly opinions in a row, both written by stuckey. If judge stucky is writing the rest of the outstanding opinions to be issued this term, can we not expect similar results?

  3. Anonymous says:


    Question: Given the (Random Inspection & Re-Inspection) UA policy “briefly” described…was it suggested that: if one tested positive on the Random UA followed by negative on the Re-Inspection UA, then that person is “NOT” subject to prosecution (i.e. No Action). If so, then the second UA is certainly an Inspection.

  4. Cloudesley Shovell says:

    I have to lean towards the dissent on this one. It’s one thing to use the additional test results as rebuttal evidence should the accused testify and deny using the drug that is the basis of the first charge. It’s quite another to use the follow-on tests as the basis for additional charges. You already got the guy on one test; the subsequent tests don’t do much in the way of good order and discipline; they just bolster a court-martial case.

    If they were really smart, they could have just ordered the guy confined after the first result. Test him on entry into the brig (undeniably an inspection), then after the second positive, do a search authorization. More than one way to deal with the problem.

    I also wonder why the defense rolled over on admitting the former commander’s affidavit? Why give up the opportunity for cross-examination and let in a hearsay statement? The affidavit was obvious bolstering most likely written by lawyers, but CAAF was stuck with it on appeal, given the standard of review. Cross-examination might well have elicited a couple evidentiary nuggets substantial enough to swing this case to a defense win.

  5. Anon says:

    I would have agreed with you but for the fact that the last test included a positive for cocaine. Something the other two tests did not. Clearly the Airman was using even after the first test.

  6. Anonymous says:

    Why would Judge Stucky be writing all outstanding opinions? Moreover, he has authored many an opinion that favored the Appellant.

  7. Cloudesley Shovell says:

    Anon at 226pm–

    The results of an illegal search can never serve to justify the search after-the-fact. Unfortunately, it is precisely the natural reluctance to let bad guys (or in Ayala’s case, utter morons) off the hook that results in the ever-dwindling protection against unlawful searches and seizures. Courts are terribly reluctant to reverse convictions, so new exceptions to warrant requirements get discovered, and the scope of those exceptions ever broadens.

  8. Brian the dog says:

    This was the correct decision, given our tortured rules governening searches and inspections.

    For a commander, there is very little difference in his mind between ordering an inspection of my urine (to ensure my fitness), and a search of my urine (to gather evidence of a crime).

    In reality, these two motives are intertwined. Fitness for duty is intertwined with GO&D. This is why commanders (uncoached by us) just can’t keep them straight.

    We have tried to make a distinction between searches and inspections, that, given the right coaching from a JA, is a distinction without a difference.

    This case lays the issue bare. As long as a commander can say he orders the inspection for the right reasons, means it, and is believed, the inspection is lawful. (Of course, here, he even got some terrible advice, perhaps never meant to be public, that was “corrected” two days later upon implimentation).

    Our current policy curbs the behavior of commanders who don’t consult their JA, or who get bad advice. It does not curb their actual behavior, much.

    I have never met a commander who wouldn’t order an inspection. (And I don’t mean to say it is subterfuge. While, sure, they also may want to punish the Soldier, they are always willing to order an inspection wholly, and truthfully, and completely independantly from his desire to punish. All commanders, solely for fitness related reasons, always want to know who in their command is using drugs).

    (But concur with C.S. – should have called the commander. Given the advice he got previously, who knows what he would have said on the stand).

  9. A Defense Counsel says:

    The majority opinion is absurb. The SJA was candid – we need a policy so we can catch these druggies and prosecute them cheapley or force them to plea. Then the commander says, “NO, I think we will do it just for GO&D” and mirrors MRE 313 language to boot? Oh yeah, that’s the ticket. The CG knows more law than the SJA and saw the SJA’s reasoning was faulty. Yup, the DC should have had the CG on the carpet, but at least he was wise enough to discover the decision paper that went to the CG.

  10. Anon says:

    Defense Counsel
    The opinion is not absurd. Intent is a question of fact — therefore the military judge gets considerable deference in making the call. Based on the evidence before the judge, I don’t believe the CAAF was wrong in concluding that the military judge’s finding was not “clearly erroneous.” By not objecting to the affidavit, the defense left themselves in a somewhat untenable position.

    Brian the Dog is correct—commanders I’ve known don’t really care about evidence. They want to eliminate any drugs from their command and get any drug abusers out of their command. While the SJA’s intent was to get evidence, there is no reason to believe that was the intent of the commander.

  11. Anonymous says:

    No reason? That goes a bit far. The dissent and the folks on here have laid out what the reason could be.

    Now is it possible that this was such a legally sophisticated commander, that he knew that his SJA was incorrect in portraying the impetus for the testing as being to perfect C-Ms?

    It is possible. Could we have solved the question by simply asking him? Absolutely. That is what should have happened, instead, as often happens, the Court made an assumption, in favor of saving the conviction.

  12. Hearsay? says:

    Would a hearsay objection apply or would the MRE be inapplicable in this motion hearing under 104(a)?

  13. A Defense Counsel says:

    Anon. What is absurd is that we all know the real deal. While commanders would rather not have druggies than CM them, we know that the CG bit on the SJA’s reasons. Then when the policy was published, the SJA re-frosted the cake. It would be interesting to know whether the SJA’s reasons were presented in the same package as the policy to sign. Probably so which would be strong evidence the CG didn’t change the “why,” but went along with the ruse it was an inspection policy. Wouldn’t you wager that the SJA wrote both his reasons AND the policy and presented both at the same CG call?

  14. Anonymous says:

    I have no idea. Nor do you. Nor does CAAF. Which is why the dissent is correct. They should have done more digging at the lower court to find out exactly what was up.

    Too often IMO courts don’t hold the government to their burdens and make favorable assumptions without forcing them to take the next step to prove those assumptions.

  15. Southern Defense Counsel says:

    Bad facts make bad law. Without evidence to impeach the commander’s motives CAAF took him at his word, which they were right to do. If DC thought that this was a subterfuge search and not an inspection, as everyone here seems to, then call him. Object to the affidavit. Make the Government put the CG on the stand. DC did not do so which means either (a) they believed the commander’s intent as set forth in the affidavit (a possibility not mentioned by the commentariat – perhaps they met with the CG and decided “nope, we want to let the judge make an ambiguity here because this guy would be solid on the stand”) or (b) DC was negligent and did not call the CG. Either way, expecting an appeals court to say “General, we know what you said, but clearly you are lying here in an affidavit. We’ll let the whole perjury thing go, but we’re going to overturn this conviction” is a bit ridiculous, isn’t it?