Last week CAAF granted review in an Army case and the Judge Advocate General of the Air Force filed a cross-certification in a case in which CAAF granted review last month.

First, the grant:

No. 19-0066/AR. U.S. v. Jeremy N. Navarette. CCA 20160786. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE ARMY COURT ERRONEOUSLY DENIED APPELLANT A POST-TRIAL R.C.M. 706 INQUIRY BY REQUIRING A GREATER SHOWING THAN A NON-FRIVOLOUS, GOOD FAITH BASIS ARTICULATED BY UNITED STATES v. NIX, 15 C.M.A. 578, 582, 36 C.M.R. 76, 80 (1965).

II. WHETHER THE ARMY COURT ERRED WHEN IT HELD THAT SUBMITTING MATTERS PURSUANT TO UNITED STATES v. GROSTEFON, 12 M.J. 431 (C.M.A. 1982), WAS EVIDENCE OF APPELLANT’S COMPETENCE DURING APPELLATE PROCEEDINGS.

Briefs will be filed under C.A.A.F. R. 25.

The Army CCA’s opinion is available here. The appellant was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal his military appellate defense counsel questioned the appellant’s competency to participate in the appellate process and asked for an inquiry into his mental health. A three-judge panel of the Army CCA denied the request, however, for three reasons:

First, the panel observed that documents show that the appellant responded well to mental health treatment. Slip op. at 4.

Second – and seemingly most importantly – the panel noted that “appellant’s counsel has not asserted any actual claim that appellant is unable to understand the nature of the proceedings or cooperate intelligently in the defense of the case.” Slip op. at 4 (marks and citation omitted).

Third, though “of least importance, appellant submitted a brief to this court.” Slip op. at 5. A footnote further observed:

that appellant submitted matters pursuant to Grostefon, 12 M.J. 431, as part of the appendix to his brief. He raised two issues asserting that he was entrapped and the evidence was factually insufficient to support his conviction due to law enforcement’s “rampant misconduct.” Although these matters do not warrant relief, they also do not indicate appellant is unable to competently assist in his appeal. Additionally, we note appellant has not moved to withdraw either the brief or the appendix.

Slip op. at 5 n.6.

Next, the cross-certification:

No. 19-0197/AF. U.S. v. Ralph J. Hyppolite II. CCA 39358. 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 on this date on the following issue:

DID THE AIR FORCE COURT OF CRIMINAL APPEALS ERR WHEN IT FOUND THE MILITARY JUDGE ABUSED HIS DISCRETION BY RULING THAT THE EVIDENCE REGARDING SPECIFICATIONS 1, 2, AND 3 COULD BE CONSIDERED AS EVIDENCE OF A COMMON PLAN OR SCHEME FOR SPECIFICATIONS 4 AND 5.

Appellee/Cross-Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 1st day of April, 2019.

We noted CAAF’s grant of review here. CAAF granted to determine whether the military judge’s error (as identified by the Air Force CCA) really was harmless. The cross-certification challenges whether it was even an error.

CAAF changed its rules back in 2006 (discussed here) to allow cross-certifications, which is a certification after a grant. Article 67(a)(2) gives each JAG the power to send (certify) a case to CAAF, and such action is basically – but not exclusively – a Government Division appeal (because sometimes issues are certified for the defense, if not in the Air Force)). Since the 2006 rules change, however, CAAF has considered the failure to certify as a form of concession of the underlying issue; the existence of error in Hyppolite, for instance. See, for example, United States v. Evans, 75 M.J. 302, 304 n.4 (C.A.A.F. 2016) (CAAFlog case page) (“Because the Government did not certify whether the CCA correctly found an Article 31(b), UCMJ, violation, this conclusion remains the law of the case.”).

6 Responses to “CAAF grants to consider an appellant’s competency, and the Air Force JAG cross-certifies in Hyppolite”

  1. Scott says:

    Kuddos to TDC for a creative defense.
     
    The ACCA is correct, however, that the assertion at trial that the appellant had a 58 IQ score is not believable.  There’s no way someone with a 58 IQ could pass the ASVAB (Army aptitude test used in recruiting), and certainty could not pass Air Assault School.  The rough IQ equivalent required to enter the Army is 85.  85 is a fairly low IQ, but the difference between 85 and 58 is night and day. 
     
    Reminiscent of “McNamara’s Boys” during Project 100,000, and the difficulty the military had teaching these low-IQ recruits even the most rudimentary of tasks (pointing a rifle, memorizing a serial number, recognizing ranks, etc).  And as far as I can tell, there’s no record of any recruit from this program having an IQ as low as the 50s.

  2. J.M. says:

    Scott, wasn’t there a recruit from Project 100,000 that earned the MOH and did some sports diplomacy before opening his own business? 

  3. Scott says:

    Yes but he was 1 in 100,000. 
     
    Also, he only did those things to impress a pretty girl. 

  4. stewie says:

    I mean he could have had a score of 58, but simply a bad test that artificially lowered his score.

  5. Shawn says:

    IQ scores lie on a bell curve normalized at 100, so a score of 58 is about as common as a score of 142.  Viz, not quite three standard deviations below the median, or roughly the 2% level.  Much research has been done, a lot of the earliest work by the Army itself.  There are things we can talk about (eg, IQ score is closely correlated with success and achievement across large populations) and things we cannot (eg, median IQ scores vary among races).  Either way, IQ says a great deal about the entire population tested and almost nothing worthwhile about the individual test takers.  Eg, among those who test 58 (or 142), lifetime success and achievement also lie on a bell curve, and if we normalize it at 58, almost a third will perform near the 100 IQ level while one in a thousand will perform as though they had an IQ of 142.

  6. stewie says:

    For all we know, he could have, in fact, been a very stable genius.