The Appellant in United States v. Vela, No. 12-0194/AR, 71 M.J. 283 (C.A.A.F. Jul. 18, 2012) (CAAFlog case page) (link to slip op.), was part of an Army sniper team assigned to provide over watch security in Jurf As-Sakhr, Iraq, in May 2007. During the assignment, a local farmer came upon the team, and was apprehended. The farmer was then murdered by being shot in the head by the Appellant, and an AK-47 was placed on the man’s body by the Appellant’s accomplice and team leader, Staff Sergeant Hensley. The Appellant and Hensley both gave false statements to criminal investigators regarding the incident.
Eventually, the Appellant made numerous confessions, which were corroborated by the statements of others. The Appellant, Hensley, and Specialist Sandoval (another team member) were all charged, and the Appellant was granted immunity and ordered to testify during the Hensley and Sandoval trials, which he did on September 27 and November 6, 2007. Subsequently, the Appellant was brought to trial, and a motion to dismiss due to government use of his immunized statements was raised and denied. He was convicted contrary to his pleas, by members with enlisted representation, of making a false official statement, unpremeditated murder, and wrongfully placing a weapon with the remains of an Iraqi national, in violation of Articles 107, 118, and 134, and sentenced to reduction to E-1, confinement for ten years, total forfeitures, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence, except for the forfeitures (finding intent by the convening authority to waive them for the Appellant’s spouse).
CAAF granted review to determine:
(I) Whether the military judge erred in denying the defense’s motion to dismiss or disqualify under United States v. Kastigar.
(II) Whether the evidence was legally insufficient to support the findings of guilty to Charge III.
The court decided both issues adversely to the Appellant, ruling unanimously that the military judge did not err in denying the motion to dismiss, and ruling 3-2 on the mater of legal sufficiency. Chief Judge Baker wrote for the majority, and Judge Erdmann, joined by Judge Ryan, concurred in part and dissented in part.
The court resolved the immunity issue by analyzing the trial military judge’s consideration of the four “Mapes factors,” (slip op. at 14), and concluded that none of the findings were clearly erroneous. CAAF considered a Kasitgar issue earlier in the term, in United States v. Morrissette, 70 M.J. 431, No. 11-0282/AR, and denied relief in that case on the same grounds. But in Morrissette (authored by Chief Judge Baker), they were the “England factors,” and in Vela (also authored by Chief Judge Baker) they suddenly become the “Mapes factors.” It’s almost as if this were the last case of the term…
The four factors are:
1. Did the accused’s immunized statement reveal anything “which was not already known to the Government by virtue of [the accused’s] own pretrial statement”?
2. Was the investigation against the accused completed prior to the immunized statement?
3. Had “the decision to prosecute” accused been made prior to the immunized statement? and,
4. Did the trial counsel who had been exposed to the immunized testimony participate in the prosecution?
United States v. Mapes, 59 M.J. 60, 67 (C.A.A.F. 2003) (quoting United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991). Now, England cited United States v. Gardner, 22 M.J. 28, 31 (C.M.A. 1986) for the factors, but no military appellate court (so far as I can discover) has ever called them the “Gardner factors.” And why would they? Only one appellate court (same disclaimer) has every used the term “England factors,” or for that matter “Mapes factors” – CAAF, in Morrissette and Vela. In the same term. It’s not quite as forehead-slapping as last term’s mobius strip of citation, but it’s close. Perhaps I need to create an award…
Fun and games aside, there’s some real sink-your-teeth-into-it law in Vela. For this I turn to a fellow (and wiser) jarhead, LtCol Devin Winklosky, who wrote on 31(b)log:
Vela was convicted of wrongfully placing an AK-47 on the body of the victim (a novel specification under Article 134). Clearly, Vela was not the perpetrator of this crime — his team leader, SSG Hensley, was the person who actually placed the weapon. So the question the court faced was whether the evidence was legally sufficient to support the conviction — this is the issue over which the court split 3-2.
Both the majority and the dissent agree on the test for legal sufficiency: “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt.” No real controversy there.
The majority, however, emphasizes the highly deferential portions of the standard of review and takes a broader, more holistic view of the facts. Indeed, when explaining the standard they make a point to highlight phrases like “any rational trier of fact…”; “full play to the responsibility of the trier of fact…to draw reasonable inferences from basic facts to ultimate facts”; “all of the evidence”; and “light most favorable to the prosecution” (twice).
You should read the rest of LtCol Winklosky’s analysis, which I am tempted to plagiarize in its entirety. But of the 33 opinions issued by the court, a mere five (including Vela) drew a dissent from two judges, and a total of only nine had any dissent at all. So the court’s division on the legal sufficiency issue begs more discussion.
At the beginning of the majority opinion is an interesting commentary on the instructions provided by the trial judge:
In this case, the members were instructed that, “An aider and abettor must knowingly and willfully participate in the commission of the crime as something he wishes to bring about and must aid, encourage, or incite the person to commit the criminal act.” Regarding the evidence in the case, the members were properly instructed that even though they must keep the evidence of each offense separate, “[i]f evidence has been presented which is relevant to more than one offense, you may consider that evidence with respect to each offense to which it is relevant.” This is an accurate statement of the law and Appellant has not challenged the military judge’s instructions.
Slip op. at 7-8. Why mention “an accurate statement of the law” that the “Appellant has not challenged”? Perhaps because the Chief Judge just doesn’t buy the members’ conclusion, but is too restrained to do anything about it. In the three paragraphs following the one quoted above, the Chief Judge wrote:
Rational court members could have found that Appellant was only feet from Hensley who, while actively restraining the bound victim, falsely informed the patrol base that a local national was walking 400 meters out with an AK-47 and then asked to execute a “close kill.” They could have further found that after the false radio transmissions to the base, Hensley told Appellant to “prep” his 9mm and then asked Appellant if he was ready — presumably ready to shoot the victim. … Rational court members could have concluded that both soldiers intended to kill Mr. Al- Janabi and stage the scene to make it appear that he was the combatant earlier described as carrying an AK-47.
The members might also have reasonably concluded that the discrete act of placing the weapon on the body of Mr. Al-Janabi was wrongful, not just because it covered up a crime, but because it could reasonably have caused United States forces to reach erroneous conclusions about the strength and location of enemy combatants as well as put local civilians at risk. …
Based on this evidence as a whole, rational court members could have concluded beyond a reasonable doubt that Appellant had the specific intent to facilitate Hensley’s act of placing the weapon with the body, and that he actively participated in Hensley’s staging of the scene by ensuring the death of Mr. Al-Janabi.
Slip op. at 8-10 (emphases added). There were many cases with legal sufficiency issues this past term, but in none did the court’s conclusion seem so attenuated. This is a point Judge Erdmann seems anxious to make in his dissent:
[The majority] goes into great detail discussing the different interpretations of the evidence panel members could have used to reach their verdict, including the suggestion that Vela intended to facilitate Hensley’s commission of a minor crime — the placing of the weapon — by committing a major crime –- the killing Al-Janabi. … This analysis strains logic.
Diss. op. at 4. Judge Erdmann found “nothing to support the contention that Vela’s actions [amounted to aiding and abetting].” Diss. op. at 4. He did find evidence that might support a charge of obstruction of justice, but he noted that the Appellant was not charged with this offense.
However, the dissent only alludes to a deeper question: Is it reasonable to say that Vela’s commission of murder aided and abetted Hensley’s actions to cover up the murder, or should it be that Hensley’s actions in the cover-up aided and abetted Vela’s commission of murder? Generally, one would think, a prosecutor seeks to hold the lesser actor liable for the offenses of the greater, and not the other way around.
But that would require some prosecutorial discretion, I suppose.