When Sam discussed, in this post, the Air Force CCA’s published opinion in United States v. McPherson, No. S32068, 72 M.J. 862 (A.F.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), he marveled at the fact that “in the view of the AFCCA, an accused’s confession to possession of illegal drugs can be corroborated by evidence that did not exist until years after that possession.” He also provided a link to what must be a picture of the AFCCA’s parking lot:
The AFCCA affirmed the findings and sentence. But the Air Force JAG just certified the case to CAAF. Not because of the back-to-the-future theory of corroboration (not to be confused with the back-to-the-future theory of maximum sentence computation that was recently rejected by the NMCCA), or even because of some other allegation of error that got favorable treatment by the CCA. Rather, TJAG certified the fact that the CCA considered applying Article 12 to the facts of the case.
No. 14-5002/AF. U.S. v. Michael C. MCPHERSON. CCA S32068. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:
WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.
The CCA’s opinion discussed the Article 12 claim in a few short paragraphs (after noting that it wasn’t raised on its own, but rather as part of an IAC claim). The most significant of those paragraphs are these two:
The appellant was initially confined at the Elmore County Detention Facility in Idaho for 15 days. He alleges that for eight of those days, he was housed in an open bay with a foreign national known only as “The Mexican,” who was awaiting deportation hearings. The appellant and “The Mexican” played card games every night while in confinement, but he does not know his actual name. The appellant did not raise this as an issue in clemency, nor is there any evidence that he notified the local confinement officials of this issue.
The appellant did not make any complaints about a violation of Article 12, UCMJ, in his clemency petition even though his clemency request was submitted after he was transferred to the Naval Consolidated Brig Miramar. The appellant waited until appellate review to raise the issue. He did not notify anyone in his chain of command or at the confinement facility of the Article 12, UCMJ, violation at the time it was allegedly occurring, nor did he file a grievance or make an Article 138, UCMJ, complaint. See, e.g., United States v. Brandon, ACM 37399 (A.F. Ct. Crim. App. 22 March 2010) (unpub. op.). As a result, the Air Force was unable to investigate the claims, make a record of it for review, or have the opportunity to immediately correct the situation, as warranted. Therefore, we find no “unusual or egregious circumstance” to excuse the appellant’s failure to pursue available administrative remedies. See Wise, 64 M.J. at 471. Based on his failure to exhaust his administrative remedies and the absence of unusual or egregious circumstances, relief for his claim of a violation of Article 12, UCMJ, is not warranted.
Slip op. at 6. This certification sure seems like a quest for an advisory opinion. Of course, CAAF can dismiss a certified issue on mootness grounds (as it did last term in Humphries).