Search: Gaskins

Opinion Analysis: Assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, but it doesn’t matter in United States v. Armstrong

CAAF decided the Army case of United States v. Armstrong, 77 M.J. 465, No. 17-0556/AR (CAAFlog case page) (link to slip op.), on Thursday, June 28, 2018. The court holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery and the decision of the Army CCA.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson writes a separate concurring opinion, joined by Judge Sparks.

Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted Armstrong of assault consummated by a battery as a lesser included offense, and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the convicton was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The charge sheet alleged that Armstrong:

did . . . commit sexual contact upon [Mrs. G.]., to wit: touching through the clothing the genitalia of the said [Mrs. G.], by causing bodily harm to the said [Mrs. G.], to wit: wedging his hands between her thighs.

Slip op. at 2 (quoting charge sheet) (modifications in original). Sexual contact is a legal term of art that encompasses touching “with an intent to abuse, humiliate, or degrade any person,” or “with an intent to arouse or gratify the sexual desire of any person.” Article 120(g)(2)(A) and (B).

In advance of trial Armstrong’s defense counsel requested instructions relevant to a possible lesser included offense of assault consummated by a battery, including “a mistake of fact instruction with regard to battery, the lesser included offense.” Slip op. at 3 (marks omitted) (emphasis added). Despite this and other requested instructions referencing battery as a lesser included offense, CAAF finds that:

Defense counsel, however, never expressly agreed that assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm.

Slip op. at 3. But at trial, when it was time to instruct the members, the prosecution requested that they be instructed that they could convict Armstrong of assault consummated by a battery as a lesser included offense of abusive sexual contact. The military judge asked Armstrong’s defense counsel for their position, to which the defense responded: “Taking no position on it, judge.” Slip op. at 3 (quoting record).

Bad move. That equivocation is why CAAF now affirms Armstrong’s conviction of assault consummated by a battery despite finding that it is not actually a lesser included offense of abusive sexual contact.

Read more »

Argument Preview: Air Force Appellate Government mostly concedes that wrongful sexual contact is not a LIO of abusive sexual contact in United States v. Oliver, No. 16-0484/AF

CAAF will hear oral argument in the Air Force case of United States v. Oliver, No. 16-0484/AF (CAAFlog case page), on Tuesday, February 7, 2017, after the argument in Ortiz. The court granted review of a single, re-drafted issue that involves the 2007-2012 version of Article 120:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – committed abusive sexual contact by placing a female trainee “in fear of an impact on her military career through the use and abuse of [Oliver’s] military rank, position, and authority.” App Br. at 10 (quoting charge sheet). The military judge acquitted Oliver of this offense and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object.

The difference between the charged offense of abusive sexual contact by placing in fear and the convicted offense of wrongful sexual contact is the element of lack of consent. Sort of. Well, probably.

Read more »

Charging sexual activity as bodily harm necessarily implies that the activity was nonconsensual

That’s functionally the conclusion reached by a three-judge panel of the Navy-Marine Corps CCA in United States v. Guin, No. 201500062 (N-M. Ct. Crim. App. Feb. 11, 2016) (link to slip op.).

The appellant was charged with sexual assault and abusive sexual contact, in violation of Article 120(b) and (d) (2012), by committing a sexual act and causing sexual contact with the alleged victim “by causing bodily harm to her.” Slip op. at 4. The bodily harm at issue was the sexual activity itself, as the specifications alleged:

Abusive sexual contact: “Specification 1: Art.120(d): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, cause sexual contact by [MASN LA], to wit: touching his penis with her hand, by causing bodily harm to her, to wit: touching his penis with her hand.”

Sexual assault: “Specification 2: Art. 120(b)(1)(B): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, commit a sexual act upon [MASN LA], to wit: penetrating the vulva of [MASN LA], with his penis by causing bodily harm to her, to wit: penetrating the vulva of [MASN LA], with his penis.”

Slip op. at 4. This is a permissible method of charging these offenses because:

The term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

Article 120(g)(3) (2012). Nevertheless, the appellant moved to dismiss the specifications at trial, asserting that they fail to state offenses. Specifically, the appellant claimed that “by pleading the sexual activity as the basis of the alleged bodily harm, the Government fatally omitted the victim’s lack of consent as a separate element.” Slip op. at 4.

Read more »

Opinion Analysis: United States v. Davenport, No. 13-0573/AR

CAAF decided the Army case of United States v. Davenport, No. 13-0573/AR, 73 M.J. 373 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A majority of the court finds that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reverses the CCA and remands the case for the convening authority to take action consistent with R.C.M. 1103(f).

Judge Ryan writes for the court. She is joined by all but Chief Judge Baker, who dissents because he finds that the missing testimony was not so important to the findings of guilt as to render the transcript nonverbatim.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. He was acquitted of a charge of money laundering. He was sentenced to confinement for two years, reduction to E-1, and a bad-conduct discharge. The convening authority approved only one year of confinement, but otherwise approved the adjudged sentence.

When the case arrived at the Army CCA for appellate review it was discovered that:

[M]issing from the record [of trial] was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. Although the court reporter recorded the testimony, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged, preventing recovery of the original recorded data. The testimony’s omission from the record was first discovered by appellate defense counsel on appeal to the ACCA. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.

Slip op. at 5. Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript in Gaskins was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record.

In Davenport, the Army CCA ordered a DuBay (post-trial factfinding) hearing “to provide the Government an opportunity to reconstruct SGT MS’s testimony.” Slip op. at 6. The DuBay revealed that missing testimony primarily – but not necessarily exclusively – related to the money laundering charge of which Appellant was acquitted. The case was returned to the CCA where:

After considering the findings from Appellant’s DuBay hearing, the ACCA found that “the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS.” Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4. Despite this fact, and in tension with the DuBay military judge’s conclusion that the substance and extent of SGT MS’s testimony was “not altogether clear” and that the testimony only “mostly” related to two money laundering charges of which Appellant was acquitted, the ACCA found that SGT MS “had no information relevant to any offense of which Appellant was convicted” and that his testimony “only related to the two money laundering specifications of which appellant was acquitted.” Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)

Slip op. at 7. The CCA then affirmed the sentence, finding that “the record in appellant’s case [was] both substantially verbatim and complete for appellate review purposes.” Slip op. at 8 (citation and marks omitted).

Judge Ryan’s opinion of the court focuses on CAAF’s disagreement with the CCA’s conclusion, and she writes that the majority is “hard pressed to agree with the ACCA that we can be certain of what SGT MS testified about.” Slip op. at 12.

Read more »

This Week in Military Justice – April 27, 2014

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in three cases this week:

Monday, April 28, 2014, at 9:30 a.m.:

United States v. Moon, No. 13-0536/AR (CAAFlog case page)

Issues:
I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.
II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.”

Case Links:
• ACCA opinion
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Argument preview

Followed by:

United States v. Davenport, No. 13-0573/AR (CAAFlog case page)

Issue:
Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a) (requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

Case Links:
• ACCA opinion
• Appellant’s brief
• Appelllee’s (Government) brief
• Blog post: Argument preview

Tuesday, April 29, 2014, at 9:30 a.m.:

United States v. Cimball Sharpton, No. 14-0158/AF (CAAFlog case page)

Issue:
Whether the Air Force court abused its discretion in finding the evidence legally sufficient to support a conviction for larceny from the Air Force.

Case Links:
• AFCCA opinion (72 M.J. 777)
• Blog post: AFCCA explains that larceny charges involving credit cards aren’t that complicated. . .
• CAAF grants review in Cimball Sharpton
• Appellant’s brief
• Appelllee’s (Government) brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 8, 2014.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 15, 2014.

Argument Preview: United States v. Davenport, No. 13-0573/AR

CAAF will hear oral argument in the Army case of United States v. Davenport, No. 13-0573/AR (CAAFlog case page), on Monday, April 29, 2014. The case returns CAAF to the question of how to deal with an incomplete record of trial, with the following granted issue:

Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a) (requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record, even when one of the CCA’s own judges decries the effort as an “appellate rescue mission” (discussed here).

But in Davenport, the transcript is not verbatim, as the testimony of at least one witness was lost when “the laptop used by the court reporter, containing both the audio recording and her notes was reimaged upon redeployment from Iraq to Fort Carson, Colorado, rendering it impossible to recover the recording.” Gov’t Br. at 4. The known missing testimony was that of a Sergeant Smith, and the Army CCA ordered a DuBay (post-trial factfinding) hearing to determine the substance of his testimony, whether any other witnesses testified during the missing portion of the transcript, whether the military judge made any substantive rulings during the missing portion, and the reason for and duration of a recess that marked the end of the missing portion.

The case is made more complex by the fact that Appellant was convicted of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.

The DuBay hearing revealed that:

Substantively, the trial judge recalled that SGT Smith testified under a limited direct examination, some cross, and some re-direct. 22 The trial judge estimated that SGT Smith’s testimony lasted less than 10 minutes. The trial judge was “very certain” that SGT Smith’s testimony was not relevant to any charge but the money laundering specifications, of which appellant was found not guilty.

The trial judge confirmed that no other issue of substance, including any meaningful objections or rulings, occurred during the time period that is omitted from the record. Following his standard routine, he would have taken notes reflecting any issue or objection affecting appellant’s rights.

Gov’t Br. at 6. From these facts the Army CCA concluded:

In this case, the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS. Nevertheless, it is clear from the military judge’s DuBay findings that SGT MS’s testimony was on the merits and only related to the two money laundering specifications of which appellant was acquitted. Sergeant MS had no information relevant to any offense of which appellant was convicted. Thus, “not one fact of substance or materiality to a legal or factual issue is missing from [appellant’s] transcript.” United States v. Nelson, 3 U.S.C.M.A. 482, 487, 13 C.M.R. 38, 43 (1953). “The totality of the omissions in this record becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness.” Id. Accordingly, we find the record in appellant’s case is both substantially verbatim and complete for appellate review purposes.

United States v. Davenport, No. 20081102, slip op. at 7 (A.Ct.Crim.App. Apr. 18, 2013).

Read more »

Four new CAAF grants (and a notable petition)

CAAF granted review of four new cases on Thursday:

No. 13-0573/AR.  U.S. v. Calvin J. DAVENPORT.  CCA 20081102.  Review granted on the following issue:

Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a)(requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted.  See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

The ACCA’s opinion is here. Our coverage of Gaskins is available on its CAAFlog case page.

No. 14-0040/NA.  U.S. v. Ethan S. SHORT.  CCA 201200483.  Review granted on the following issue:

A punitive discharge may not be affirmed when the record is not verbatim. Here, during sentencing, the members heard some portion of the providence inquiry which drew a curative instruction from the military judge. On appeal, the lower court attached, over defense objection, what purported to be the missing section. This section was not properly authenticated nor does it accurately reflect the missing portion. May appellant’s punitive discharge be affirmed despite the lack of a verbatim record?

The NMCCA’s opinion is here.

No. 14-0071/AR.  U.S. v. Travis D. JONES.  CCA 20110679.  Review granted on the following issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

The ACCA affirmed without a written opinion.

No. 14-0230/AR.  U.S. v. Samuel R. SPOTTS.  CCA 20111144.  Review granted on the following issue:

Whether appellant was denied effective assistance of counsel when his trial defense counsel failed to request deferment of automatic forfeitures on his behalf.

The ACCA affirmed without a written opinion. 

CAAF’s docket also notes an appeal by the accused in the Article 62 case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), where the CCA granted a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. I discussed the CCA’s decision in this post (where I wrote, “I’d be surprised if CAAF doesn’t weigh in on this case.”). The Government’s response is due by January 27.

2012 Term End o’ Term Stats – Part IV (retained counsel and the appellate defense divisions)

This year retained counsel represented parties before CAAF in seven opinion-generating cases: Spicer (retained counsel on brief only, military counsel argued this case), Cote, CCR, Gaskins, Squire, Garner, and Vazquez.

The Government lost in three out of these seven (Spicer, Cote, and Gaskins), for a 43% defense success rate in cases with retained counsel.

But that includes the writ-appeal in CCR, where CAAF found no jurisdiction. Excluding that unusual case, cases with retained counsel resulted in relief in a healthy three out of six cases (50%).

In comparison, military appellate defense counsel won relief in 15 out of 31 cases (48.4%).

Note: 31 cases is the 40 total cases identified in Monday’s Part I, less LRM, Hasan, and the seven cases with retained counsel identified above.

Of the 15 cases where military appellate defense counsel won relief:

Two (13.3%) were Air Force cases (Capel and Tunstall).

Five (33.3%) were Army cases (Kelly, Riley, Jasper, Bennitt, and Schell).

One (6.7%) was a Coast Guard case (Medina).

Six (40%) were Marine Corps cases (Salyer, Caldwell, Hutchins, Castellano, Solomon, and Porter).

One (6.7%) was a Navy case (Mott).

(Seven (46.7%) total Navy and Marine Corps cases).

So, the success rates for each of the four appellate defense divisions (using a total of 31 cases) were:

Air Force Appellate Defense: 33.3% (2 out of 6).

Army Appellate Defense: 45.5% (5 out of 11).

Coast Guard Appellate Defense: 50% (1 out of 2).

Navy-Marine Corps Appellate Defense: 58.3% (7 out of 12).

2012 Term End o’ Term Stats – Part II (dissents)

Of the 34 authored opinions this term, ten were unanimous (with neither separate concurring opinions or dissents). Of these, the Government prevailed in just four. The Government won three out of four per curiam decisions (there was a fifth per curiam decision, in Hasan, which could be considered a Government loss). The Government also won in the summary disposition of Holsey.

But there were dissenting opinions in 16 of the 34 cases with authored decisions.

Note: After much back-and-forth, I’ve decided to count Judge Erdmann’s separate opinion in Irizarry, joined by Chief Judge Baker, “dissenting in part and concurring in the result,” as a concurring opinion, primarily because even with this separate opinion the court was unanimous in denying relief to the appellant.

Overall, Chief Judge Baker and Judge Stucky were tied for the greatest number of dissenting votes, with seven each. Next was Judge Ryan with five, followed by Senior Judge Cox with three, and Judge Erdmann and Senior Judge Effron with just one each. These dissents favored the Government as follows:

Chief Judge Baker sided with the Government in 5 of 7 dissents (71.4%)

Judge Stucky sided with the Government in 4 of 6 dissents (66.6%) (his seventh dissent was in LRM)

Judge Ryan sided with the Government in 4 dissents (100%) (her fifth dissent was in LRM)

Senior Judge Cox sided with the Government in 1 of 3 dissents (33.3%)

Judge Erdmann was against the Government in his one dissent (0%)

Senior Judge Effron sided with the Government in his one dissent (100%)

Eight of the 34 authored opinions had a lone dissent. Of these:

Read more »

2012 Term End o’ Term Stats – Part I (overview)

Over the course of this week I’m going to continue our annual tradition of end-of-term number crunching.

CAAF heard 36 oral arguments this term, which resulted in 34 authored opinions, one per curiam opinion, and one summary disposition. The court also issued four per curiam opinions in cases without hearing oral argument, for a total of 40 cases this term.

Of these 40 cases, three (Hasan, CCR, and LRM) involved petitions for extraordinary relief.

Of the 34 authored opinions, the work of writing the authored opinions was as evenly divided as possible for a four-judge court: Judge Ryan and Judge Erdmann each wrote nine opinions, and Chief Judge Baker and Judge Stucky each wrote eight. Neither of the Senior Judges authored an opinion of the court, but Senior Judge Effron wrote a separate concurring opinion in Garner, and Senior Judge Cox wrote dissenting opinions in CCR and in Wilson.

Because of the continuing vacancy, CAAF was a four-judge court for the second year in a row. CAAF called on Senior Judge Effron and Senior Judge Cox to participate in the 36 oral arguments. The court also called on Senior Judge Effron to participate in the writ-appeal in Hasan, which was decided without oral argument. Overall, just like last year, Senior Judge Effron participated in more cases: 22 to Senior Judge Cox’s 15 (last year Senior Judge Effron participated in 20 cases to Senior Judge Cox’s 16).

The breakdown of cases by service can be counted in a number of ways:

Of the 40 total cases identified in the first paragraph, the breakdown is:

Air Force: 9 (22.5%)
Army: 17 (42.5%)
Coast Guard: 2 (5%)
Marine Corps: 7 (17.5%)
Navy: 5 (12.5%)
(Navy and Marine Corps combined: 12 (29.4%))

Of the 36 oral arguments, the breakdown is:

Air Force: 8 (22.2%)
Army: 16 (44.4%)
Coast Guard: 1 (2.8%)
Marine Corps: 6 (16.7%)
Navy: 5 (13.9%)
(Navy and Marine Corps combined: 11 (30%))

Of the 34 authored opinions, the breakdown is:

Air Force: 8 (23.5%)
15 Army: 15 (44.1%)
Coast Guard: 1 (2.9%)
Marine Corps: 6 (17.6%)
Navy: 4 (11.8%)
(Navy and Marine Corps combined: 10 (29.4%))

The Government won more than it lost, but just barely. Excluding the three cases involving petitions for extraordinary relief (but including the summary decision in Holsey), the Government won in 19 cases and lost in 18 cases. I’m including Gaskins (where the Government won on the first and primary issue, but lost on the second issue that addressed a defective 134 specification in a case that was tried well before CAAF decided Fosler) as a loss for the Government, though I really consider it to be more of a tie.

So, of these 37 cases, the Government won in:

5 out of 8 Air Force cases (62.5%).

8 out of 15 Army cases (53%)

1 out of 2 Coast Guard cases (50%).

1 out of 7 Marine Corps cases (14.3%).

4 out of 5 Navy cases (80%).

(5 out of 12 combined Navy and Marine Corps cases (42%)).

Excluding the summary decision in Holsey and the three cases involving petitions for extraordinary relief (Hasan, CCR, and LRM), the Government won 18 out of 36 cases (50%) decided by an opinion of the court. This is relatively low. Last year the Government won 67% of the cases decided by an opinion of the court, though the year before it won just 52%.

CAAF heard seven cases with certified issues, including LRM. Excluding LRM, the Government won 3 out of 6 certified cases (50%). The Government won just 40% of the certified cases last year.

Of the cases where CAAF heard oral argument, the Government won 17 out of 34 (50%) (these numbers do not include the oral arguments in CCR or LRM). This is down significantly from last year, when the Government won 66% of of the cases where CAAF heard oral argument.

And finally, excluding the three cases involving petitions for extraordinary relief (Hasan, CCR, and LRM), each of the judges sided with the Government as follows:

Chief Judge Baker: 23 out of 37 (62%)

Note: This includes Irizarry as a unanimous win for the Government, even though Chief Judge Baker and Judge Erdmann dissented in part, because they concurred in the result.

Judge Ryan: 23 out of 37 (62%)

Judge Stucky: 21 out of 37 (57%)

Senior Judge Effron: 10 out of 20 (50%)

Judge Erdmann: 18 out of 37 (49%) (see the note about Irizarry above)

Senior Judge Cox: 6 out of 15 (40%)

In the CAAF

A couple of interesting items off the Daily Journal over the last few days.  First a grant.

No. 13-0518/AF.  U.S. v. Jordan C. PASSUT.  CCA 37755.  Review granted on the following issue:

WHETHER A STATEMENT MADE TO AN AAFES EMPLOYEE FOR THE PURPOSE OF CASHING A WORTHLESS CHECK SATISFIES THE “OFFICIAL” ELEMENT OF A FALSE OFFICIAL STATEMENT.

This was a particularly egregious form of bad check writing according to the facts in the AFCCA opinion.  CAAF to add a nuance to United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013)?   Spicer is the case that arguably cuts back on what is or isn’t an “official” statement for Article 107, UCMJ, purposes.   The first list of arguments is out, but Passut awaits a date (Sr. J. Effron will sit for the September arguments).  Likely Judge Stucky will write the opinion in Passut?

whether a false statement is official, or capable of perverting authorized military functions, “the critical distinction is . . . . whether the statements relate to the official duties of either the speaker or the hearer, and whether those official duties fall within the scope of the UCMJ’s reach.” Day, 66 M.J. at 174.

And here is a summary judgement.

No. 13-5005/AF.  U.S. v. Patrick CARTER.  CCA 37715.  On consideration of the issues certified by the Judge Advocate General of the Air Force, 72 M.J. 253 (C.A.A.F.2013), we conclude that the United States Air Force Court of Criminal Appeals did not err in finding that Appellee was prejudiced by the government’s failure to allege the terminal element for Specifications 1 and 2 under Charge III alleging child endangerment and indecent acts with the same child, both in violation of Article 134, UCMJ.  SeeUnited States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72M.J. 225 (C.A.A.F. 2013).  Accordingly, it is ordered that the first certified issue is answered in the affirmative and the second and third certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.*

*  Baker, Chief Judge (dissenting):

I dissent based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

Correction: The 2012 Term Silver CAAF Tongue Winners are Major Tyson Kindness and Mr. William Cassara

We award the Silver CAAF Tongue to the appellate counsel who argued the most cases at CAAF during the term.

Two errors in my case-tracking spreadsheet caused me to miscount, and I originally had Mr. William Cassara as the sole winner, with four oral arguments: Gaskins, Squire, Garner, and Vazquez.

But there are two winners this year. Major Tyson Kindness of the Air Force Appellate Government Division also argued four cases: Cote, Datavs, Vazquez, and LRM (for the United States).

My deepest apologies to Major Kindness for my error.

Notably, Major Kindness and Mr. Cassara faced-off in the certified case of United States v. Vazquez, No. 12-5002/AF, (opinion) (CAAFlog case page), with Major Kindness’ argument prevailing.

A four seven-way tie for second place is shared by Captain Michael Berry (Navy-Marine Corps Appellate Defense), Captain Kenneth Borgnino (Army Appellate Government), Lieutenant David Dziengowski (Navy-Marine Corps Appellate Defense), Captain Brandon H. Iriye (Army Appellate Defense), Major William Kirby (Navy-Marine Corps Appellate  Government), Captain Brian Mason (Air Force Appellate Government), and Major David Roberts (Navy-Marine Corps Appellate Government). Each argued three cases this term.

Congratulations to all.

The wild world of terminal elements

Captain Thomas, U.S. Army, was convicted by a general court-martial of fraternization, orders violations, and obstruction of justice. He pleaded guilty to most of the offenses (violating a lawful general order, violating a lawful order, one specification of fraternization, and obstruction of justice, in violation of Articles 92 and 134). But he pleaded not guilty to two specifications of fraternization in violation of Article 134. He was tried by members on those two specifications, convicted of both, and then sentenced by the members to a dismissal.

But like so many other Article 134 specifications, the two fraternization specifications failed to expressly allege the necessary (“terminal”) element that Appellant’s conduct was prejudicial to good order and discipline or that it was of a nature to bring discredit upon the armed forces. In a per curiam opinion dated January 29, 2013, the Army CCA recognized that the missing element was error, but found no prejudice because Appellant pleaded guilty to a third specification of fraternization that also omitted the terminal element. The court reasoned, “Here, we find that the providence inquiry and discussion of the elements and instructions as to Specification 3 of Charge VII fully and adequately informed appellant so that he was on notice of the terminal elements for Specifications 1 and 2.” Slip op. at 3. The CCA then affirmed the sentence.

But CAAF reverses in a summary disposition dated July 2, 2013:

The military judge’s identification of clauses 1 and 2 of Article 134, UCMJ, during the providence inquiry did not place Appellant on notice of the government’s theory of liability for the contested fraternization specifications.  At most, the providence inquiry merely made Appellant generally aware of the law, which does not provide notice of the terminal element.

CAAF sets aside the findings of guilty to the two contested specifications, and remands for further action by the CCA (dismiss and reassess the sentence, or authorize a rehearing). Chief Judge Baker dissents, citing his dissents in Fosler and Humphries (and reminding me of this discussion of stare decisis at CAAF).

This case is notable for the things unsaid. Defense counsel assisted Appellant as he pleaded to two violations of Article 134 (fraternization and obstruction of justice) and explained in his own words how his conduct violated an uncharged terminal element. And trial counsel listened intently throughout. But then there was a contested trial, before a panel of at least five officers, about two more violations of Article 134, during which the uncharged element was apparently all-but ignored. We know that the Defense didn’t focus its efforts on disproving a terminal element (because that would have allowed CAAF to affirm by applying Tunstall), nor did the Defense use argument or cross examination to rebut Government evidence that proved a terminal element (because that would have allowed CAAF to affirm by applying Goings). Perhaps the Government concedes that no direct evidence was presented to prove a terminal element (and CAAF reverses in accordance with Gaskins), but we can’t say for sure.

The only thing that is certain is that the Defense remained relatively passive during the contested portion of this trial, and did not aggressively attack the circumstances that criminalized the Appellant’s improper relationships with enlisted service members. We know this because if there had been a zealous defense that addressed the terminal element at trial, CAAF would have affirmed.

But there’s more. The Defense didn’t object to the missing element at trial (if it had, Fosler requires reversal). So the error of the missing element was forfeited, meaning that the appellate courts review for plain error which requires (1) error, that is (2) plain or obvious, and (3) materially prejudiced a substantial right of the accused (and maybe (4) seriously affects the fairness, integrity, or public reputation of the proceedings). And when an error is forfeited at trial, the Defense has the burden of persuasion on appeal. Yet look at the issue before CAAF:

Whether a providence inquiry can cure the prejudice from the Government’s failure to allege the terminal element of two contested Article 134, UCMJ, specifications.

The prejudice appears to be presumed. Wild.

Air Force JAG certifies Arriaga to CAAF

The long-running case of United States v. Arriaga is headed back to CAAF on certification by the Judge Advocate General of the Air Force, with the following interesting issues:

I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.

II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.

III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.

I recall discussion of something similar to Issue I over the past term or two, but can’t remember where. Issue II is familiar to those who have followed the Humphries/Fosler line of cases (and this term’s analytical trio of Tunstall, Goings, and Gaskins). And Issue III got plenty of indirect attention this term: In Tunstall, Judge Erdmann writing for the majority, emphasized in a footnote that: “We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here.” Slip op. at 14-15 N.7. But in his concurring opinion in Tunstall, Judge Stucky explained that he “would adhere to the Supreme Court’s four-prong plain error test as set out in [Olano].” Con. op. at 2. And in his concurring opinion in Gaskins (decided on the same day), Judge Stucky practically invited this issue: “I will await a case in which the issue of which test to apply is squarely presented,” he wrote.

As for Arriaga, this will be its third trip to Judiciary Square. The AFCCA’s most recent opinion is here, and provides the extensive history which is reproduced after the jump.

Read more »

Opinion Analysis: United States v. Gaskins, No. 13-0016/AR

CAAF decided United States v. Gaskins, No. 13-0016/AR, 72 M.J. 225 (Gaskins IV) (CAAFlog case page) (link to slip op.), on Thursday, May 23, 2013, finding that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit, but that the CCA erred when it found that the Appellant waived the Government’s failure to plead the terminal element of the Article 134 specification, and also finding that this failure materially prejudiced a substantial right of the Appellant. CAAF reverses the ACCA in part, sets aside the sentence, and remands the case to the CCA for a sentence reassessment.

Judge Ryan writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky writes separately, concurring in part and in the result. Chief Judge Baker also writes separately, concurring in part and dissenting in part.

Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – a sentencing exhibit consisting of the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that, even now, will continue (since CAAF remanded the case to the CCA for a sentence reassessment).

First, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Notably, all three of the judges who participated in the oral argument dissented from the CCA’s opinion in the case (and we remarked about the dissenting opinion this post).

Then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished), setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Finally, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of two issues:

I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.

II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.

The Appellant’s argument before CAAF was that the loss of Defense Exhibit A resulted in an incomplete record that requires either a complete rehearing on the merits or a limitation on the sentence that may approved to that which “could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved.” R.C.M. 1103(f). The Government also argued R.C.M. 1103, but it asserted that a sentencing rehearing is authorized. Judge Ryan and the majority see things differently:

The problem with both parties’ reliance on R.C.M. 1103 is that the provisions they point to are limited in their application, by R.C.M. 1103’s express terms, to instances where a verbatim transcript cannot be prepared. Id. In this case, the transcript is verbatim, but the record was otherwise incomplete prior to the Appellant’s clemency submission because a defense sentencing exhibit was missing.

Slip op. at 11. Because the transcript is verbatim, “R.C.M. 1103(f)’s limiting provisions are inapposite.” Slip op. at 12. Judge Ryan further explains that Article 54 does require a complete record, but nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record. Such a remedy may include remanding for a rehearing on just the sentence in order to create a complete record of the sentencing hearing:

Where the CCA exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the CCA, as required by Articles 54 and 66, UCMJ. While R.C.M. 1103(f) does not apply to an incomplete record, it would make little sense to permit a rehearing on findings to create a new record of trial as a remedy for the absence of a verbatim transcript, but not permit a rehearing on sentence to seek to cure any prejudice suffered from a missing sentence exhibit.

Slip op. at 13-14. But the circumstances also matter to the majority, and Judge Ryan notes the factors that help CAAF find that the ACCA’s remedy of a new sentencing hearing “was appropriate under the circumstances.” Slip op. at 14.

We note that a CCA may order a rehearing where it sets aside a sentence adjudged by a lower court and approved by the convening authority. We further note that, on rehearing, the military judge took extra care to craft remedial measures that sought to cure any prejudice Appellant may have suffered from the absence of DE A. She ruled that any victim-impact evidence in aggravation would be time-limited to the date of the original presentencing hearing. She further ruled that TS could not testify, allowing only a stipulation of expected testimony from TS’s mother. Moreover, we consider the fact that, on rehearing, Appellant’s original sentence, awarded by members who had had every opportunity to review DE A — confinement for twelve years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge — was reduced by three years’ confinement as indicative that the ACCA’s remedy was nonprejudicial in this case.

Slip op. at 14-15 (citations omitted). Judge Ryan concludes her analysis by highlighting the absence of a statutory or regulatory requirement for “a particular remedial measure to address an incomplete record in a general court-martial, [so] we hold that the ACCA did not abuse its discretion in ordering the rehearing.” Slip op. at 15.

Then the majority turns to the defective Article 134 specification, in a perfectly-captioned section:

Read more »