The AFCCA issued a published opinion on June 10, 2013, in Unites States v. Berkhimer, No 37850. The court rejects the Appellant’s entrapment claim based on the objective test, which looks for conduct by law enforcement that is so outrageous that it violates due process. Instead, the court concludes:

In sum, the undercover operation instituted by AFOSI with the assistance of Amn CI was not so outrageous that it violated fundamental fairness or was shocking to the universal sense of justice. Instead, it was a permissible exercise of law enforcement authority and, as such, it did not violate the appellant’s due process rights under the Fifth Amendment.

Berkhimer, slip op. at 7. However, it does find one of the Appellant’s guilty pleas improvident, and provides slight sentence relief in reassessment.

The AFCCA also issued a published opinion on May 30, 2013, in United States v. Sousa, No. 37889. The court rejects challenges to the Appellant’s conviction of forcible sodomy of his wife. The Appellant challenged the military judge’s refusal to admit a video recording of other sexual activity between the appellant and his wife under M.R.E. 412, and the judge’s refusal to instruct the members on the lesser-included offense of consensual sodomy. The court notes:

The appellant argued at trial that admission of the contents of the entire DVD was constitutionally required. We disagree. DS repeatedly testified that, although she didn’t enjoy anal sex and did so only to please her husband, she engaged in consensual sodomy multiple times during the course of the relationship and even after the November forcible sodomy incident. The issue at trial was whether she declined to participate on one occasion in November 2006, which was not among the video clips on the DVD.

Sousa, slip op. at 9-10. The CCA also finds that the Appellant affirmatively waived the right to an instruction on consensual sodomy. In making this finding, the court addresses CAAF’s opinion in United States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999), where that court found that “the waiver rule only applies absent plain error.” The CCA comes to a different conclusion:

in a situation where there is a discussion about instructions on lesser-included offenses and an accused affirmatively exercises his right to waive an instruction, we fail to see how a plain error analysis would apply. Applying a plain error analysis in that circumstance would allow an accused two bites at the apple: he could affirmatively waive a lesser-included offense instruction at trial and, if his tactical decision proves to be unavailing, he could revisit that tactical decision on appeal.

Sousa, slip op. at 13.

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