Early last year, in United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013) (CAAFlog case page), the Government answer to the granted issue asserted that the defense waived any error by affirmatively stating that it had no objection at trial. The appellant responded by asserting that the Government failed to appeal the CCA’s finding of error, making it the law of the case. Chief Judge Baker’s majority opinion – in which the court affirmed the CCA – didn’t resolve whether waiver was a factor. Instead, the majority assumed no waiver and found the error harmless.

But in a concurring opinion, Judge Erdmann set the stage for a recent action by the Air Force JAG:

Under the court’s rules prior to 2007, the government was placed in a difficult situation. The accused had sixty days from the date of the CCA decision to file a petition at this court. The government had thirty days from the date of the CCA decision to certify an issue to this court. The government would often see no need to certify an issue to this court in a case where it may have failed to prevail on every issue before the CCA, but ultimately prevailed in having the conviction affirmed. However, where an accused had filed a petition with this court which had been granted, by the time of the grant the government was often time-barred from certifying an issue, even though the non-appealed issue may have impacted the government’s ability to respond to the accused’s issue.

Because of these filing deadlines, this court would find itself faced with situations where an accused would file a petition asserting that the CCA erred and the government would often respond by arguing that another, non-appealed, portion of the CCA decision was error. However, “[u]nder the ‘law of the case’ doctrine, an unchallenged ruling ‘constitutes the law of the case and binds the parties. As a result, we would spend a good deal of time entertaining arguments as to whether the “law of the case” doctrine should apply to bar litigation of the non-appealed issues or whether the government’s issue was reasonably contained in the granted issue.

In recognition of this situation, we amended C.A.A.F. R. 19(b)(3) in 2006 to give the government thirty days from the date that we granted an issue in which to certify an issue.

Clifton, 71 M.J. at __ (Erdmann, J. concurring at 3-4) (citations and marks omitted). The new rule was effective January 1, 2007. Judge Erdmann then further elaborated:

In light of the rule change, once an issue has been granted by this court, the government should certify any issue upon which it did not prevail at the CCA and which it deems necessary to litigate before this court.

Clifton, 71 M.J. at __ (Erdmann, J. concurring at 7-8) (emphasis added). So, likely with these exact words of Judge Erdmann in mind (and I also recall Judge Ryan giving a government attorney some grief on this issue during a recent oral argument), now here comes the Judge Advocate General of the Air Force:

No. 14-5006/AF & 14-0283/AF. United States, Appellee/Cross-Appellant v. Justin M. PIOLUNEK, Appellant/Cross-Appellee. CCA 38099. Notice is hereby given that a certificate for review of the decision of the Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 8308, 8313, AND 0870 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, 73 M.J. 281 (C.A.A.A.F. 2014) (CAAFlog case page), is a decision of the Air Force CCA that put it at odds with CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page). Sam provided an excellent summary of Piolunek in a post titled: AFCCA Invites CAAF to Clarify its Position in Barberi. CAAF then granted review in Piolunek earlier this month (see this post).

[here lies omitted a snarky reference to why a rules change effective in 2007 required emphasis in a concurring opinion in 2013]

16 Responses to ““Great idea, Judge Erdmann!” says the Air Force JAG”

  1. BooRadley says:

    It is now official, JAG certification has become the government appeal.  Why argue it.  When has a JAG certified a defense issue?  Yet we see numerous government certified issues.  Why not call it what it is, a government apeal.  The only difference is the defense must beg CAAF to review a case, the government forces them to review it. 

  2. LT Caffey says:

    One more certification and he gets a free set of steak knives!

  3. Dew_Process says:

    Gene Fidell may recall this in more detail, but there (once) was a TJAG cert to CAAF on behalf of an Accused/Appellant @ 6 or 7 years ago.
     
    But, as long as we’re talking about UCMJ “protections” that in theory were supposed to also help the Accused / Appellant such as the TJAG CAAF cert process, does anyone recall the last time any TJAG sent a case to a CCA via Art. 69(d)???
     
    In 1977 (and that’s no typo), I had an AF case “busted” under Art. 69(a), at which point, the AF adopted the Raven program:
     

    But the Raven, sitting lonely on the placid bust, spoke only
    That one word, as if his soul in that one word he did outpour.
    Nothing farther then he uttered—not a feather then he fluttered—
    Till I scarcely more than muttered “Other friends have flown before—
    On the morrow he will leave me, as my Hopes have flown before.”
                Then the bird said “Nevermore.”
     

    With apologies to Edgar Allan Poe!

  4. Zachary D Spilman says:

    Sorry Dew_Process, but the Judge Advocate General of the Navy has been more generous with the Article 69 power than that.

    In a post last May titled NMCCA Sets Aside Drug Conviction on Confrontation Grounds, I discussed United States v. Rose, No. 201100584 (N-M.Ct.Crim.App. Apr 30, 2013) (per curiam) (link to unpub. op.). As the title of the post reveals, the CCA set aside the findings. But in the post I explained:

    An additional interesting twist. The sentence for this single-spec conviction was reduction one grade (to E-5) and confinement and forfeitures for 90 days. But the CCA “[has] jurisdiction over this case because the Judge Advocate General (JAG) sent it to this court for review under Article 69(d), UCMJ. To facilitate our review, we ordered a verbatim record of the trial proceedings from arraignment through findings.” Slip op. at 2 N.1.

    Remember United States v. Hathorne from last term? No such thing as a “sub-jurisdictional case,” implied the Court of Appeals. Very robust appellate system we have, with the possibility of an impressive six levels of review. This case proves that point.

  5. Don Christensen says:

    Lt Gen Rives sent the Harvey case to AFCCA via 69(d) in 2008.  I believe it was decided in April 09, so it does happen.  I believe Dwight did a post about the case on this very blog.   Even though I was the prosecutor on the case, I was pulling for Harvey. It was the only time I ever wanted to lose a case I was prosecuting. 

  6. John O'Connor says:

    U.S.v.Ali (prosecution of government contractor) got to ACCA by way of Article 69 review.
     

  7. k fischer says:

    DC, 
     
    I’ve never quite understood Prosecutors who express how badly they feel about an accused who got convicted when they prosecuted him.  That should be an emotion reserved only for Defense counsel after an acquittal because it isn’t too difficult to lose a case you are prosecuting when you want to.  So, were you really surprised when the panel dismissed Harvey against your recommendation to only give him a reprimand, no jail time, no dismissal, and no forfeiture of pay?  What about when you met with the Convening Authority and asked him to disapprove the dismissal?  Did he kick you out of his office, so you had to go to TJAG and ask him to certify the case?
     
    Come to think of it, I too had that feeling once when I was the Recorder on an Officer AdSep Board in a fraternization case where the Board voted to separate.  Although, I didn’t feel the guilt until I had some time to think about it after the board.  And, I was rather nonchalant about getting the tapes transcribed, as I assigned the task to 100 monkeys with a typewriter, which gave the Officer more time to rehab with his new unit and for the Separation Authority who referred it to a Board to PCS.  Then, the litany of Officers who testified on his behalf at the board met with the new separation authority and convinced him to disapprove the separation.  
     
    So, I was able to come through in the end.  I mean, seriously, did a mustang LT who was a Drill Sergeant of the Year, Soldier of the Year, and OCS honor grad need to be kicked out of the Army because he slept with his PFC driver?  I mean, she was pretty hot.  I can’t really blame him for not turning her down.  

  8. Don Christensen says:

    KF. For some reason, many of you on this blog forget that government counsel are advocates with clients too.  I had made it clear I didn’t believe the case should be handled at a court. So did the IO at the 32. As we all know, we have a commander controlled justice system.  The CA decided the case should be tried at a GCM. My role was then to advocate for the US. The evidence supported the charges. There was not an ethical in prosecuting the case.  I would not be performing my role as a government advocate if I mailed it in.  I would never criticize a defense counsel for being a zealous advocate. Yet, many on this blog will snipe at government counsel for doing the same. I felt bad for Harvey. I disagreed with the forum, and was happy for him when the CA disapproved the dismissal. I hardly think that warrants you attacking my integrity. 

  9. Zachary D Spilman says:

    I’m with Don Christensen on this. 

    But I do hope that the scenario presented is highly-anomalous:

    I had made it clear I didn’t believe the case should be handled at a court. So did the IO at the 32. As we all know, we have a commander controlled justice system.  The CA decided the case should be tried at a GCM.

    Assuming we’re talking about what we seem to be talking about, the case of United States v. Harvey, 67 M.J. 758 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010), was discussed in this post, and involved an officer who was convicted of conduct unbecoming for engaging in consensual sodomy with another man. That’s a fact pattern that makes for one heck of an ideological mudfight. 

    Notably though (to change the subject), in Harvey the AFCCA rejected the appellant’s assertion that the existence of the factors that remove allegedly-criminal sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas must be determined by the trier of fact (this issue was actually certified by the JAG). CAAF overturned that decision last year by its decision in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page) (unanimously concluding that the existence of such factors must be determined by the trier of fact).

    Captain Harvey was sentenced to a dismissal and a reprimand, but the CA approved only the reprimand. Still, I can’t help but think that Harvey is a good candidate for retroactive application of Castellano…

     

  10. k fischer says:

    There was no attack, DC.  Just an observation.  In fact, I don’t know if you caught where I described how I did the same thing.  What you did was completely ethical.  I guess I’d be the unethical one because my Commanders would have received a less than stellar performance and I would have recommended only a reprimand if it got to sentencing.  Because if engaging in oral sodomy with multiple partners in a foreign country is conduct unbecoming, then I am quite fortunate I made it out of Korea free of an Article 133 conviction, notwithstanding mine being heterosexual.  I realized after that case that I didn’t want to prosecute those who I didn’t think needed to be.
     
     
    Perhaps that’s why I love being a defense counsel.  I don’t have to worry about prosecuting people that deep down I’m rooting for or are guilty of something I might have done.

  11. k fischer says:

    I caught that, Zach.  But I thought the CG was waiting for the appellate court’s decision and the dismissal was pending.  Of course, Harvey would have had an automatic appeal, and TJAG would not have had to certify the issue. In order for a monkey like me to understand that the CG disapproved the dismissal, it is not enough to say that the CG approved only the reprimand.  You have to beat me over the head and say that he disapproved the punitive discharge, too.

  12. k fischer says:

    Zach, 
     
    One more thing.  So, are you really with Don on this one?  Perhaps, you should read an article I found written by someone who I consider the Obi-Wan of military justice.  Certainly, the author of this article would have blamed the person in Don, or his boss’s, shoes for the conviction and sentence in Harvey rather than the Commanders.
     
    And DC, I like you.  I think you have great litigation skills, and I really liked your comment about the new Article 120.  But, your comment about Harvey made me harken back to those prosecutors who at the bridge the gap sessions would shake their heads and tell the judge that they wish they didn’t have to take the case.  I would imagine that every prosecutor stands at those crossroads at some time in their career.  It’s not an ethical issue.  But, I do note that you don’t have “clients” in the plural.  You have a client: the United States.  You are a part of the United States, the Accused is a part of the United States, as is the Commander who drives the UCMJ, as well as us taxpayers who pays everyones salaries.  I’m glad a case like this would most likely not go today, because as a taxpayer, I don’t think it is money well spent.  So, which one of these parties would you recommend a young AF JAG serve?  And, if the prosecutorial discretion of the UCMJ was in the hands of the lawyers, rather than the Commander, then this case would not have gone to trial.
     
    So, I consider it quite a tightrope to walk in our current system and what we have is a difference of opinion regarding the prosecutorial discretion of a trial counsel.  I completely see your side; I might have believed it when I was a TC.   I just prefer the lush green grass on the other side.  
     
    I agree that my comment was a snipe, but I would not question your integrity.  From what I’ve read in the news, you seem to be pretty above board.

  13. Zachary D Spilman says:

    I’m with Don Christensen on this k fischer because I see a real moral hazard if your reasonable-sounding proposition is taken to its logical conclusion. You wrote:

    I’ve never quite understood Prosecutors who express how badly they feel about an accused who got convicted when they prosecuted him.  That should be an emotion reserved only for Defense counsel after an acquittal because it isn’t too difficult to lose a case you are prosecuting when you want to.

    Well, so when a TC prosecutes a service member for wrongful use of marijuana, he should tank the case because the TC believes that marijuana should be legalized? Or tank a prosecution for fraudulent enlistment based on an undisclosed criminal history, because the TC believes that military service should be a second chance for a young person? Or maybe even tank a prosecution for consensual sodomy charged as conduct unbecoming, because the TC believes that a GCM conviction for consensual sodomy is unjust?

    I make it clear that I hope that the scenario presented is highly-anomalous. There are innumerable ways a trial counsel (who has the case from the beginning) can shape a prosecution to avoid the kind of difficult decision we’re talking about. After all, who really picks the charges in any case… But I can see a scenario (particularly under the facts of Harvey and its somewhat creative legal theory) where a trial counsel personally wants his client’s (the Government) legal theory to fail, but pursues that theory zealously nevertheless. 

    If such a situation isn’t highly-anomalous, then I think we’re talking about a greater cultural problem. Put differently, if the leadership is pushing weak cases and wacky legal theories over the objections of the prosecutors, such that the prosecutors actually hope for an acquittal, then something is seriously wrong. If that’s confusing, imagine it instead as a military commander whose plan of attack causes his subordinates to start rooting for the enemy.

  14. k fischer says:

    Zach,
     
    I get it.   And agree that every TC has that case hopefully only once in their lives.  I just had a court martial that should have been a FG 15 where the TC asked for a one rank reduction and reprimand and any other punishment the court thought appropriate.   The judge gave the client a reprimand only.  I got the feeling that the TC was being pressured to ask for a BCD by the question he asked in the bridge the gap,( I.e. would you have given him a BCD if I asked?) but demonstrated a lot of moral courage by only asking for one rank reduction. The judge laughed and asked if he thought a SFC with 3 deployments, a bullet slug still lodged in his leg, and 17 yrs in the Army deserved to get kicked out of the Army for a 107 violation.  

  15. stewie says:

    We’re talking a range here.
     
    On one end, conduct we all agree is reasonable and fair.  On the other, unethical conduct (prosecutions that hide evidence or are done knowing for sure there is no evidence).  In the middle lays a vast ocean of gray.  I have a hard time judging a prosecutor just because I personally wouldn’t have charged it or charged it that way so long as it’s not unethical to do so.

  16. Charlie Gittins says:

    So, back in the dinosaur days, there were the Tailhook prosecutions.  One prosecutor, whose name I regrettably fail to remember, told his boss he could not ethically prosecute the case he was assigned because he was sure he could not prove guilt beyond a reasonable doubt.  He was relieved of duty and basically cashiered.  Most of us dinosaurs remember the Tailhook scene with mixed emotions — glad that Judge Vest had the balls to call out the SECNAV and CNO and end the witch hunt, but disappointed that the excesses of NCIS in intimidating, threatening and otherwise using unethical tactics against both accuseds and DCs never being investigated.  I didn’t have a dog in that prosecutors case, but he earned my respect because he understood his ethical obligation and refused to be a part of a railroad.  Haven’t seen that since; probably because of what happened to him.