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:

Are these standard issue

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).

3 Responses to “The Air Force certifies McPherson”

  1. RKincaid3 says:

    Hmmm….said another way–with the following language–

    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.

    –the court is saying that the government never has an obligation to follow the rules or the law unless and until someone complains about their violation thereof.  Nice…so much for principles of justice and restrained government.
    It seems that this position will cause people to complain about everything…even BS.  And worse, it will cause the government to fail to police its own conduct as a matter of practice since the rule is now–notwithstanding statute–“no complaint means no foul.”
    Simply ridiculous!

  2. ArmyTC says:

    People (read: prisoners) do complain about everything. Even BS. Especially once they talk to the jailhouse lawyers. Did you know that running out of mac and cheese at the mess and not replacing it, so the prisoner has to eat rice, instead is cruel and unusual punishment?
    The jailhouse lawyers do.
     
    Did you also know that having library call and religious services overlap by even one minute is also cruel and unusual punishment?
     
    The jailhouse lawyers do.
     
    Enough with the sarcasm. In my experience, a lot of these “violations” happen when you’ve got a non-service facility hosting military prisoners in transit and they can’t abide to the letter of our regulations without sacrificing their SOP (i.e. they only have one post-trial bed available for an in-transit SM and it’s in an open bay where foreign nationals are also confined). A lot of these violations are also unsupported by evidence other than the self-serving statement of a prisoner (“I don’t know his name, I don’t know where he was from or why he was there, but everyone called him “The Mexican” and he spoke Spanish”) that they conveniently fail to raise until appeal, so they don’t give the GCMCA an opportunity to review the claim and grant relief.

  3. Tami says:

    Getting thrown in jail “in immediate association” with foreign nationals is NOT BS!  My office litigated Article 12 at Fort Carson very extensively when I was there, and we were extremely successful in obtaining confinement credit for those violations.  The El Paso county jail followed a different system, prisoner classification was based on the charge sheet.  That led to my client getting taken from medium security to max security, getting locked in with a convicted drug dealer, then when we complained about that, getting thrown back into medium security with all kinds of foreign nationals waiting to either be deported or for their deportation hearings, majority of them convicted of serious felonies.  This isn’t something to take lightly.  My client got an extra 112 days of confinement credit for violations of Articles 12 and 13.
     
    That being said, the burden is on the accused to complain of the situation.  Lack of complaint implies accused is happy with the situation, or considers it more beneficial.  But that doesn’t mean he shouldn’t get some credit for the government breaking its own rules.  The defense can make a motion for credit because the government abused its discretion.  Breaking the pretrial confinement rules is per se abuse of discretion.
     
    And Army TC, it’s not just the “self-serving” statement of the accused, it’s also the testimony of the prison guards and the inmate report–who they are, who they’re housed with, when they go in, when they go out, what their status is.