Truth, lies and Afghanistan

How military leaders have let us down

By LT. COL. DANIEL L. DAVIS

I spent last year in Afghanistan, visiting and talking with U.S. troops and their Afghan partners. My duties with the Army’s Rapid Equipping Force took me into every significant area where our soldiers engage the enemy. Over the course of 12 months, I covered more than 9,000 miles and talked, traveled and patrolled with troops in Kandahar, Kunar, Ghazni, Khost, Paktika, Kunduz, Balkh, Nangarhar and other provinces.

What I saw bore no resemblance to rosy official statements by U.S. military leaders about conditions on the ground.

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

This week at CAAF: The next scheduled oral argument at CAAF is on February 13, 2012.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 18, in the case of United States v. Jones-Marshall, No. 20100649. The case involves a GCM conviction of conspiracy to steal military property, larceny of military property, and forgery. The granted issues are:

I. [Whether] the evidence is legally insufficient to support a finding of guilty of Charge IV (forgery).

II. [Whether] the military judge committed plain error by failing to treat Charges III and IV as an unreasonable multiplication of charges, where the larceny was accomplished by means of forgery.

III. Whether the evidence is legally and factually sufficient to support appellant’s convictions for conspiracy under Specifications 2 and 3 of Charge I.

Note: Issue III was specified by the court.

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

This week at the CGCCA: The Coast Guard Trial Docket shows one case pending at the Coast Guard CCA, and set for argument on May 7, 2012.

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week. However, the court heard oral argument last week, on February 2, in the case of United States v. Warren, on the following issue:

Whether this court erred in its 3 June 2011 order setting aside the 13 May 2011 convening authority’s action as ambiguous; specifically, did the convening authority’s action contain clear and unambiguous language approving or disapproving a dishonorable discharge in light of United States v. Wilson, 65 M.J. 140 (C.A.A.A., 2007)?

This week at CAAF: The next scheduled oral argument at CAAF is on February 13, 2012.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 1, in the capital case of United States v. Akbar, No. 20050514. The granted issues are:

I. Sergeant Hasan K. Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment to the United States Constitution, at every critical stage of his court-martial.

A. Sergeant Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment and denied his right to representation by counsel qualified under 18 U.S.C. § 3599 (2006), in violation of his rights under the fifth, sixth, and eighth amendments to the U.S. Constitution and Article 36, UCMJ, when his trial defense counsel failed to seek the appointment of qualified counsel to represent Sergeant Akbar in this capital court-martial.

B. Sergeant Akbar was denied his right to effective assistance of counsel when his trial defense counsel failed to adequately investigate appellant’s social history, ignored voluminous information collected by mitigation experts, ceased using mitigation experts, resulting in an inadequate mental health diagnosis because the defense “team” failed to provide necessary information to the defense psychiatric witness.

C. Sergeant Akbar was denied his sixth amendment right to effective assistance of counsel where the trial defense counsel failed to challenge for cause any panel members, even though counsel had multiple causal reasons including actual bias, implied bias, an inelastic opinion against considering mitigating evidence on sentencing, and panel members’ detailed knowledge of uncharged misconduct that the judge specifically ruled inadmissible.

D. Sergeant Akbar received ineffective assistance of counsel during the merits stage of his court-martial when his trial defense counsel conceded guilt to all the elements of a capital offense, in violation of article 45(b), UCMJ, 10 U.S.C. § 845(b) (2002), and devised a trial strategy that was unreasonable and prejudicial.

E. Appellant received ineffective assistance of counsel on sentencing.

F. Sergeant Akbar’s trial defense counsel were ineffective for admitting in [its] entirety appellant’s diary without any substantive analysis and without appropriate regard for the highly aggravating and prejudicial information it contained.

II. When read with other Supreme Court precedent, military case[-]law, and cases from other federal jurisdictions, Ring v. Arizona, 536 U.S. 584 (2002), and its underlying rationale reveal [the] charges were improperly preferred, investigated, and referred, and appellant’s conviction and death sentence was unconstitutionally adjudged.

A. Appellant’s death sentence was adjudged unconstitutionally [sic] where the R.C.A. 1004(c) provisions relevant to his case were not expressly alleged in the charges preferred against him, were not expressly investigated pursuant to R.C.M. 405 and Article 32, UCMJ, and were not expressly referred to his court-martial by the convening authority.

B. Based on the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitionally delegated to the president the power to enact the functional equivalent of elements of capital murder, a purely legislative function.

C. Ring v. Arizona requires that the members find that aggravating factors substantially outweigh mitigating circumstances beyond a reasonable doubt.

III. Sergeant Akbar’s death sentence is invalid because the panel was misinformed about his mental condition at the time of the offenses.

Note: Each party is granted 120 minutes for argument.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

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

Tuesday, January 24, 2012:

United States v. Barberi, No. 11-0462/AR

Issue: Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

Followed by:

United States v. Bradley, No. 11-0399/NA (Bradley II)

Issues:
I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?
II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?
III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

Case Links:
• Bradley I: N-MCCA opinion
• Bradley I: CAAF oral argument audio
• Bradley I: CAAF opinion
• Bradley I: Blog post: CAAF issues two more opinions
• Bradley II: N-MCCA opinion
• Bradley II: Appellant’s brief
• Bradley II: Appellee’s (government) brief
• Bradley II: Blog Post: Argument preview

This week at the ACCA: The Army CCA’s docket shows no scheduled oral arguments this week.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

The appellant entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.

On automatic review, the N-MCCA set-aside the findings and sentence, ruling that the trial military judge gave an ambiguous advisement with regard to the unconditional nature of the appellant’s guilty pleas, finding the pleas to be de facto conditional, and deciding that the military judge abused his discretion by not disqualifying trial counsel who had knowledge of appellant’s immunized statements, creating a Kastigar violation.

The JAG certified two issues to CAAF, which heard oral argument in 2009 (Bradley I), asking if the CCA erred in (1) finding the trial military judge abused his discretion by not disqualifying the trial counsel, and (2) setting-aside the findings and sentence without first finding material prejudice. However, CAAF did not consider the specified issues. Instead, in an opinion from which (now) Chief Judge Baker dissented, CAAF found the appellant’s guilty plea to be unconditional, waiving the issues, set-aside the CCA’s decision, and returned the case for the CCA to complete its review under Article 66.

On remand (Bradley II), the N-MCCA affirmed the findings and sentence, finding that CAAF’s opinion prohibited it from finding the appellant’s pleas improvident based on the waiver issue, and deciding that the appellant’s civilian defense counsel’s advice was not so deficient as to amount to ineffective assistance of counsel.

In November, 2011, CAAF granted review of three issues:

I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?

II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?

III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

The appellant’s brief cites new evidence introduced by the appellant on remand before the N-MCCA – that the appellant’s pleas were improvident based on his mistaken belief that the disqualification issue was preserved for appeal, and that his civilian counsel was ineffective – to support an argument that CAAF, in Bradley I, did not reach the pivotal issues in this case, and then invited CAAF to decide them now rather than remand for a third review by the CCA.

Citing CAAF’s opinion in Bradley I, the appellant’s brief argues that the appellant’s pleas are improvident because he misunderstood a material term (waiver of the disqualification issue), and that the court must either revive that motion, or set-aside the findings.

Then, arguing that the civilian defense counsel’s performance amounted to IAC, the brief states that the record is clear that there was no consent to a conditional plea, and further shows that the civilian defense counsel believed the disqualification issue was preserved, despite unconditional pleas. The brief notes the relative ease with which this issue could have been researched and discovered by the civilian trial defense counsel.

Finally, tackling the third issue, the brief argues that the N-MCCA violated the law of the case doctrine by not relying on its own findings in Bradley I. “In short, the NMCCA Panel in Bradley II was required to follow the prejudice finding by its Bradley I brethren. By failing to do so, it violated the law of the case doctrine.” Appellant’s Br. at 19.

The government’s brief first argues that CAAF’s opinion in Bradley I finally resolves the issue of the providence of the appellant’s pleas, and that the N-MCCA is bound by this ruling (in a competing law of the case argument). The government notes that the only significant new evidence brought on remand was an affidavit by the appellant, making a “bald claim” that preservation of review was central to his pleas.

Addressing the issue of IAC, the government’s brief states that the civilian defense counsel’s belief that the disqualification issue was preserved by the appellant’s pleas was reasonable. The government styles the civilian defense counsel as a “zealous advocate who reasonably misjudges the law.” Appellee’s Br. at *22 (pages unnumbered). However, the brief also argues that there is no prejudice, as the appellant would not rationally have insisted on going to trial due to the overwhelming evidence against him and a favorable pretrial agreement.

The government’s brief then makes short work of the appellant’s argument on the third issue, noting that CAAF set-aside the CCA’s ruling in its entirety, making it irrelevant to further proceedings.

CAAF’s review will be de novo, and will include both the underlying questions of law and the question of the scope of its remand in Bradley I. I anticipate the oral argument will revolve around how broadly CAAF must review the NMCCA’s opinion in Bradley II.

Case Links:
• Bradley I: N-MCCA opinion
• Bradley I: CAAF oral argument audio
• Bradley I: CAAF opinion
• Bradley I: Blog post: CAAF issues two more opinions
• Bradley II: N-MCCA opinion
• Bradley II: Appellant’s brief
• Bradley II: Appellee’s (government) brief
• Bradley II: Blog Post: Argument preview

Military officials have determined that official transcripts of military commissions held for key terrorism suspects at Guantanamo Bay must be treated as “top secret,” even when members of the public, the press and victims’ families have witnessed the entire proceeding, according to a recent legal filing.

The post includes a link to a “Defense motion for a consistent, coherent policy concerning classification of court proceedings.”

Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.

The appellant was convicted by members, contrary to his pleas, of one specification of sodomy of a child who had attained the age of 12, but was under the age of 16, and one specification of possession of child pornography, in violation of Articles 125 and 134, UCMJ.

During trial the government admitted six photographs (of the appellant’s step-daughter, nude) taken by the appellant. The defense argued that none were child pornography, and specifically that two did not focus on genitalia and were not lewd and lascivious. The ACCA found that four of the six images (including the two identified by the defense at trial) were legally and factually insufficient as child pornography.

In his brief to CAAF, the appellant argues that “images not containing a lascivious exhibition are constitutionally protected speech. Where a general verdict of guilt rests in part on conduct that is constitutionally protected, the Due Process Clause of the [Fifth Amendment] requires the conviction to be set aside.” Appellant’s Br. at 9. In making this argument, the appellant distinguishes this case on the basis that some of the images (the non-pornographic) were constitutionally-protected speech. The appellant argues that the conviction requires “automatic reversal” because there is no way to determine whether the finding was based on protected or unprotected conduct.

The government parses this issue finely in its brief, arguing that while a conviction may not rest on a constitutionally-protected ground, this case involves multiple bases for the conviction, some of which are insufficient. The government distinguishes between a flaw in the proof (this case) and a flaw in the statute (the basis of the appellant’s argument), and argues that the court should assume the members found the appellant committed the act that the facts support. Because any of the images constituted child pornography, the government argues, the members could properly convict the appellant of the offense. The government also argues that if CAAF finds error, it should test for prejudice (and reject the appellant’s call for automatic reversal).

In a reply brief the appellant restates the constitutional basis for his argument, disagreeing with the government’s characterization of this issue as merely a flaw in the proof.

CAAF’s review will be de novo.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

This week at CAAF: The next scheduled oral argument at CAAF is on January 24, 2012.

This week at the ACCA: The Army CCA will hear oral argument in five cases this week:

Wednesday, January 18:

United States v. Reynard, No. 20100531

Issue: I. [Whether] The evidence is legally and factually insufficient to prove rape and indecent assault.

Briefs not posted.

Thursday, January 19:

United States v. Spicer, No. 20090608

Issues:
I. [Whether] The evidence is factually and legally insufficient to support the findings of guilty.
II. [Whether] Appellant’s sentence is inappropriately severe.

Case Links:
• Appellant’s brief
• Appellant’s supplemental brief
• Appellee’s (government) brief

Followed by:

United States v. Boldware, No. 20090665

Issues:
I. [Whether] Article 120(c) of the UCMJ, which requires the accused to disprove the element of incapacity by a “preponderance of the evidence” in order to assert the affirmative defense of consent, unconstitutionally burdens the accused.
II. [Whether] The military judge erred in precluding under military rule of evidence 412, vigorous cross-examination of the alleged victim about homosexual conduct offered to demonstrate the strong motive to misrepresent the truth contrary to appellant’s sixth amendment rights.
III. [Whether] The military judge erred when upon finding appellant not guilty of charged offense of article 125, UCMJ, sodomy, he found appellant guilty of what he believed was a lesser included offense of abusive sexual contact under article 120, UCMJ.

Briefs not posted.

Friday, January 20:

United States v. Presley, No. 20090673

Issues:
I. Whether the military judge committed plain error during sentencing by considering detailed descriptions of aggravated acts of uncharged misconduct that were not directly related to the charged offenses.
II. Whether the approved sentence to confinement for five (5) years is inappropriately severe.
III. Whether appellant’s defense counsel provided ineffective assistance by failing to procure the services of an expert consultant in the field of forensic psychology or otherwise request a sanity board under R.C.M. 706.

Briefs not posted.

Followed by:

United States v. Bean, No. 20100362

Issue: I. [Whether] The military judge abused his descretion in accepting appelant’s plea to Charge III and its specification, conduct unbecoming an officer and gentleman.

Case Links:
• Appellant’s brief
• Appellee’s (government) brief

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the N-MCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Kilarski on Friday, January 20. The case involves a conviction by members of a single specification of wrongful use of marijuana. The granted issues are:

I. Under the Sixth Amendment of the Constitution, an Accused has the right “to be confronted with the witnesses against him.” A recent Supreme Court decision, Bullcoming v. New Mexico, ruled that surrogate testmony of a scientist who did not certify a forensic laboratory report introduced into evidence violates the Confrontation Clause. Here, despite the defense’s request for the certifying scientist’s testimony, the military judge permitted a surrogate to testify. Did the military judge err?
II.  After inspecting Corporal Kilarski’s urine sample, the laboratory accessions technician handwrote a discrepancy code on the specimen custody document. Before trial, the defense argued the confrontation clause required the accessions technician’s testimony, but the military judge denied its motion. Did the military judge err?

Additionally, the court posted the details of last week’s oral argument in United States v. Simmons. That case is an en banc reconsideration of the court’s unpublished opinion (available here) affirming the findings in part but setting aside the sentence. The issues argued were:

I. United States v. Ferguson and United States v. Broce establish that an unconditional guilty plea waives any objection related to the facutal issue of guilt. The panel was not satisfied that appellant was acting in an official capacity or that his actions created an inference of service endorsement and, therefore, set aside appellant’s guilty plea to Article 92. Did the panel err in not finding that, by admitting certain facts at trial and pleading guilty, appellant waived his right to contest the government’s theory on appeal?
II. The panel found that appellant never wore a complete uniform so the general public could never receive visual evidence of the authority and responsibility vested in the individual by the united states government. Did the panel err by drawing a distinction between wearing a complete uniform and wearing uniform items?

In addition to reporting the official test result for any positive sample in Block G, Block H certifies “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” In the instant case, Block G reflected that the appellant’s sample tested positive for “cocaine,” and Block H was signed by two Final Certifying Laboratory Officials (FCLOs), LT L.A. Estralla, who was in training, and R. Flowers.
Slip op. at 3.

In the instant case, Blocks G and H of the specimen custody document, present a formalized, conclusory affirmation that is identical to the certification in Sweeney. Consequently, we find these two portions of the specimen custody document to be testimonial hearsay and their admission, over defense objection, to be in error: the FCLOs who signed the attestation were not subject to cross-examination, and the testimony of Mr. Sroka as a substitute or surrogate witness did not satisfy the Confrontation Clause. Moreover, the testimony of Mr. Sroka concerning the certification was also admitted in error, as an expert may not act as a conduit for repeating the inadmissible testimonial hearsay of another.
Slip op. at 5.

The exclusion of Block G is significant, as it appears to be a summary of the underlying findings. At this rate, the excluded portions of a urinalysis report may soon exceed the admissible.

Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing.

In response to early questions from the court, the appellant’s counsel agreed that a writing was made in this case (the checks appear in the record of trial), but argued that it was not “falsely made” because it was a genuine making of a false instrument. The checks in this case were not fake checks, but were made by someone who was not authorized to draw from the account. Moreover, in the signature block, the checks were not falsely inscribed with the name of the appellant’s relative who owned the account, but rather said “by retail services, for [the appellant].”

The appellant’s counsel insisted that the crime could have been charged under multiple articles, including Article 121 (larceny) or Article 123a (making, etc., without sufficient funds), but that it is not a forgery in violation of Article 123 because there is no false writing. Further, the appellant’s counsel stated that the law of this matter is clear, but was just improperly applied by the trial military judge when accepting the appellant’s plea.

However, Judge Erdmann and Senior Judge Cox seized on the appellant’s false representation – that he had the authority to draw from the account – as the falsity in the making of the instrument. During discussion of this point, Judge Erdmann disclosed that he thought, from the briefs, that this was a case about electronic writings, not about the falsity of paper writings. I thought the same in my argument preview.

The government’s counsel began his argument by stating that the appellant admitted to sufficient facts to support the finding of guilty, so long as the court resolves the legal question of whether the checks were falsely made in the affirmative. He then stated that the checks were “not genuine” because they purported that the appellant was the owner of, or an authorized party to, the account, which was false. However, he was asked to square this position with the MCM’s discussion that excepts a genuine making of a false instrument from a forgery, and had a difficult time doing so. Ultimately, the court returned to the question of what on the instrument was false, and the government’s counsel returned to the answer of the appellant’s purported ownership of the account.

At one point during the argument, the government’s counsel cited a case that was identified in supplemental citations of authority that the government submitted the day before the argument. This prompted the following statement from Judge Ryan, which begins at 27:40 of the argument audio:

Can I just take this moment to ask about the supplemental citations of authority because – this isn’t really just directed at you, it’s just a general comment for the world – we keep on getting supplemental statements of authority which, in my understanding, in regular federal practice, is for new authority that’s been recently discovered, and we are continually getting the citations of authority the day of or the day prior to arguments, for cases from 1976 and much longer ago, can you explain why that is?

Later, in an exchange that vividly illustrates (what has been described to me by one appellate practitioner as) the need for an integrated “government” position in military justice matters, Judge Stucky asked (at 31:45) if it’s the government’s position that the court should “simply disregard the manual” with respect to this issue. The government’s counsel admitted that this is indeed the government’s position.

When the appellant’s counsel returned for rebuttal, he was immediately questioned by Judge Erdmann about the plain language of Article 123 that addresses “any person who falsely makes any part of any writing which, if genuine, would impose a legal obligation.” He asked why that doesn’t apply in this case, despite the discussion in the MCM; how can someone genuinely make a false instrument. The appellant’s counsel answered that because the appellant stole money that wasn’t his, but he didn’t purport to be someone else while he did it, the writing was a genuinely-made falsehood.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument Preview
• Oral argument audio
• Blog post: Argument Recap

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

And indeed it did, as the court seemed intent on identifying a narrow rule to address situations where an individual consents to seizure and analysis of a bodily fluid, but later revokes that consent.

The argument began with the appellant’s counsel discussing the right to withdraw consent at any time under Military Rule of Evidence 314. He also cited CAAF itself for the principle that consent is a waiver of the right to demand that the government agents obtain a warrant to justify the search.

The court immediately wondered where this ends – what happens when the consent is revoked at some non-specific time after the seizure takes place? Must the government then take affirmative steps to stop further analysis? The appellant’s counsel answered this in the affirmative, arguing that once the consent is withdrawn the government must stop testing, but he conceded that testing that occurred before consent was withdrawn would be admissible at trial. In the words of Judge Stucky (at 3:25 of the argument audio): “the cat’s out of the bag once it’s tested.”

The argument then turned to analysis of inevitable discovery in this case, embarking on a fact-intensive discussion that I considered possible in my preview, but is based on a level of factual detail not available from the briefs alone. The appellant’s counsel argued that discovery was not inevitable because, under the circumstances, the government would not have pursued investigation of the appellant.

But, returning to the law, the argument turned to the application of the Fourth Amendment’s prohibition of unreasonable search and seizure. Appellant’s counsel argued that in this case the appellant has a Fourth Amendment interest in both the extraction of the bodily fluid and in the subsequent chemical analysis. But then what? Judge Ryan asked if the argument is that the appellant had the right to get the sample back (once he withdrew consent), or if he just had the right to withdraw consent to the search, and the appellant’s counsel said that he only had the right to withdraw the consent to the search, resulting in a “freeze.”

The argument also addressed the nature of the consent, with the appellant’s counsel arguing that the consent extended only to analysis for drug metabolites, and excluded further analysis (for illnesses or viruses, for example).

The government’s counsel began his argument with an assertion that, once the urine was released to the government, the appellant’s privacy interest in the urine was gone. This brought immediate scrutiny from Judge Stucky who asked about the application of withdrawal of consent under M.R.E. 314. The government’s counsel replied that once the evidence is in the possession of the government, the process cannot be stopped. However, in response to questioning from Chief Judge Baker, the government agreed with the appellant that the scope of the testing is limited to the scope of the consent (which may be determined from the rationale on the consent form). Chief Judge Baker didn’t seem particularly happy with this, expressing concern about the next case where the issue will be that the government exceeded the scope of so narrow a reading of the nature of the consent.

Judge Ryan then asked why anything after the revocation of consent is admissible. The government’s counsel responded by analogizing the urine to data copied from a computer, which the government may then keep and test regardless of any revocation of consent (or return of the computer). This led to a question of when the expectation of privacy in urine/bodily fluids ends, with the government arguing that the privacy interests are pierced at the time the urine is given (the interests being defined by the government as (1) the privacy of the release process and (2) the information revealed by the chemical analysis).

But, Judge Ryan nicely summarized the appellant’s position, stating (at at 25:45): “this isn’t a case where there was a warrant, this isn’t a case where there was any other exception to the Fourth Amendment, it’s a case where an additional gloss upon the Fourth Amendment has been imposed by the Military Rules of Evidence.” The government’s counsel agreed (somewhat reluctantly).

But, the government returned to the argument that the time to revoke consent was before the urine was released “and all expectations of privacy had been given up.” Whether this is true – that the expectation of privacy ends after production of the sample – is really the heart of the dispute and (Spilman’s view) is where CAAF’s rulemaking will occur.

The argument then turned to the fact-specific question of inevitable discovery, with the government’s counsel arguing that even without the appellant’s consent, the discovery of the metabolite in the appelant’s urine was inevitable.

Ultimately, the government’s counsel defined his argument as that post-seizure analysis (of urine, physical evidence, etc.) is not covered by the Fourth Amendment. Senior Judge Cox opined that this is “a much cleaner test.” (audio at 36:45).

Also, for those looking out for the standard of review, Judge Ryan defined the standard of review of the trial military judge’s conclusions of law (on the matter of inevitable discovery) as: “for abuse of discretion it’s not that we de novo look at his conclusions of law, it’s did he apply the correct law and are his facts correct, and then [just] the fact that he might come to a different conclusion of law than we would isn’t an abuse of discretion … so what law did he incorrectly state or incorrectly apply in drawing his legal conclusion…” (audio at 39:00).

In rebuttal, the appellant’s counsel noted that M.R.E. 314 does not distinguish between items in the custody of the government and not. Additionally, he argued that M.R.E. 314 creates a heightened standard for consent, beyond that of the Fourth Amendment alone.

Case Links:
• AFCCA opinion
• Blog post: AFCCA Clarifies Expectation of Privacy in Urine
• Blog post: Significant search and seizure CAAF grant
• Appellant’s Supplement to Petition for Review
• Appellee’s (government) Reply
• Blog post: Argument Preview
• Oral argument audio
• Blog post: Argument Recap

I. Under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917?

II. Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain appellant’s conviction under specification 2 because in doing so it (1) violated the Prather legal-impossibility principle and (2) impermissibly found as facts allegations that he was found not guilty of in specification 1.

III. Whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39(a) session prior to trial.

The appellant, a Marine Corps Captain, was convicted in 2009, contrary to his plea, of one specification of aggravated sexual assault in violation of Article 120, UCMJ.

Prior to trial, the trial military judge “ruled that because he was ‘in the best position’ to determine if the consent defense is raised by the evidence, Capt Stewart was required – then and there – ‘to show by a preponderance of the evidence’ the existence of consent in the case.” Appellant’s Brief at 5. The defense presented evidence, and the military judge ruled that it had met the preponderance burden and permitted the defense.

After the prosecution rested, the defense moved for findings of not guilty under Rule for Courts-Martial 917. The trial military judge denied the motion without considering his finding that the evidence presented by the defense before trial proved the defense by a preponderance.

Noting that the trial military judge opted for the “preponderance” standard, vice the “some evidence” standard, the appellant argues at CAAF that under Prather, once the trial military judge found that the evidence presented by the defense proved consent by a preponderance, he was required to enter findings of not-guilty.

And yet, the issues before CAAF are much stranger. Issue III addresses the pre-trial hearing during which the appellant presented evidence of consent, specifically two documents: (1) a sworn statement submitted by the appellant to NCIS, and (2) a transcript of the victim’s testimony at the Article 32. However, this evidence, specifically the statement to NCIS, was not provided to the members, though the record indicates that the appellant’s civilian trial defense counsel believed (until he drew a prosecution objection during closing arguments) that it had been admitted and would be published.

Additionally, Issue II addresses the unique circumstances of the specification, which was actually half of a duplicitous specification that was severed before trial. The specification originally stated “was substantially incapacitated or substantially incapable” (emphasis added). The appellant was convicted of the “substantially incapable” specification, and acquitted of the “substantially incapacitated” specification. However, the trial military judge’s instructions for the two specifications were largely identical. Accordingly, the appellant argues, the findings are ambiguous, and when the N-MCCA found the finding of guilty factually sufficient, it relied on facts of which the appellant was acquitted.

If this is not already paradoxical enough, the appellant’s brief states (at page 4-5) that the trial military initially ruled that, if the members convicted the appellant of both specifications, the specifications would be merged for sentencing. However, the brief also states (at page 7) that the members were instructed that they could return a finding of guilty to only one specification.

In its brief, the government argues that the military judge’s determination permitting the defense of consent was merely an interlocutory decision. Noting initially that there is no procedure for a trial military judge to set-aside a members verdict solely because it goes against the weight of the evidence, the government argues that the record makes it abundantly clear that the trial military judge was merely making a pre-trial determination of whether the consent instruction was to be given, and not finding facts during the pre-trial hearing. The government also notes that the military judge does not have the power to enter a judgment of acquittal prior to the presentation of evidence (which is essentially what the appellant seeks). Additionally, the government phrases the trial military judge’s preponderance test as a test of whether the defense of consent was in issue, not whether the defense of consent was proven.

The issue involving the severed specification is seen by the government as invited error, because the accused requested severance, but then argued that the conviction is impossible to uphold on appeal. Moreover, seizing on the difference between”substantially incapable” and “substantially incapacitated” (especially in light of Congressional differentiation), the government argues that the finding is not ambiguous or inconsistent.

Finally, addressing the pre-trial hearing, the government argues that it did not prejudice the appellant, and that the statement to NCIS was not provided to the members because it was both inadmissible and not offered by the appellant. In this context, the government distinguishes a pre-trial hearing by a military judge alone, where the Rules of Evidence do not apply and materials are considered but not necessarily admitted into evidence, to trial proceedings before members.

In a reply brief, the appellant restates his reliance on Prather to support the argument that the trial military judge was required to grant the defense motion for findings of not guilty. He also argues that either the government must have elected a single theory of criminality in a single specification, or the military judge must have instructed the members that they must convict of both or neither specifications, in order to avoid ambiguity and error.  The appellant’s counsel concludes his reply brief with a summation of his arguments:

All Capt Stewart wanted, and was entitled to, was a fair trial. He objected to the original specification, requesting that the prosecution elect its theory of criminality, as the MCM requires. The request was denied. He objected to being required to produce consent evidence with members absent and before the prosecution’s case,39 but the judge demanded it. So Capt Stewart provided his NCIS statement, which the military judge accepted and used to rule that he would issue the consent-defense instruction. Then, when Capt Stewart attempted to direct the members to that statement – the evidence he relied upon to craft his trial strategy – the military judge refused to allow the members to see it, leading to the ruinous argument highlighted in Capt Stewart’s original brief.

CAAF will review the issues in this case de novo, and there’s plenty of fodder and complexity. I suspect that the oral argument will focus on the meaning and significance of the trial military judge’s employment of the “preponderance” standard, with the severed specification and instructions thereon getting a good deal of consideration. I also anticipate consideration of a hypothetical case that omits the pre-trial “preponderance” hearing conducted in this case.

Case Links:
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

The Food and Drug Administration is warning patients about a potential mix-up between powerful prescription pain drugs and common over-the-counter medications like Excedrin and Gas-X made at a Novartis manufacturing plant.

The problem is a result of major manufacturing problems at a Lincoln, Nebraska, facility which was shut down last month. The Swiss drugmaker has recalled bottles of Excedrin, Bufferin and other medications which may have included mixed up pills.

Now the FDA says some of those over-the-counter pills may have accidentally been packaged with powerful prescription painkillers made at the same facility. The opioid drugs are sold by Endo Pharmaceuticals as Percocet, Endocet, Opana and Zydone.

Novartis Consumer Health said the recall, which also applies to bottled versions of NoDoz and Gas-X Prevention, is a precautionary measure.

However, counsel practicing before the N-MCCA remain on the cutting edge (Fosler was a Marine Corps case, after all), boldly seeking the next radical theory to challenge the conventional wisdom. Alas, in a recent opinion, the N-MCCA stands firm. The court finds that where an accused pleaded guilty to attempts to commit violations of Article 134, in violation of Article 80, it was unnecessary to allege terminal elements in the specification because, in part, “there is no legal requirement to overtly plead, or otherwise include by necessary implication, the particularized elements of the target offense, for attempts.” United States v. Sokolis, No. 201100415, slip op. at 2-3 (N-M Ct. Crim. App., December 27, 2011).

Of course, the N-MCCA also affirmed the findings in Fosler.

The issue arises from a plea of guilty of forgery by uttering in violation of Article 123, UCMJ, where the appellant used the account and routing numbers from a check sent to him by his cousin to create electronic checks to pay for purchases at Best Buy via an automated bill pay system.

The AFCCA considered this issue and affirmed the conviction, finding that “the appellant caused the checks to be falsely made and he uttered them. This is not a borderline case, the military judge did not abuse his discretion in accepting the appellant’s guilty plea, and we are ourselves convinced of the appellant’s guilt.” United States v. Weeks, No. ACM 37535, slip op. at 3 (A. F. Ct. Crim. App., March 30, 2011).

Before CAAF, the appellant argues the either a writing or signature is a required element of Article 123, and that even if the appellant made an electronic writing or signature, it was not falsely made.

Arguing that the Code adopts the common law on forgery, the appellant’s brief states that historically:

Forgery was a more serious crime because of the threat it posed to a financial system based largely on blind trust. The technological landscape has changed since Blackstone and Coke, so that photo IDs, PIN codes, instant credit checks, and biometrics now protect the system. Banks and businesses have other means to detect, deter, and defend themselves from the unscrupulous. That may be why Congress has not extended Article 123 to electronic signatures, much less to oral and telephonic transactions.

Appellant’s Br. at 7. The brief continues, arguing that thievery is not necessarily forgery and CAAF should not extend the definition of forgery to include electronic signatures (noting that the N-MCCA has reached this same conclusion in United States v. Nimmons, 59 M.J. 550 (N-M Ct. Crim. App., 2003)).

On the issue of whether an electronic writing or signature was falsely made, the appellant argues that “[he] did not say ‘by’ when he ‘signed’ checks over the telephone, but that is effectively what he did. He purported to have authority to sign the checks, but he did not impersonate the Barbers. It is impersonation that distinguishes forgery from other thievery. Appellant did not impersonate. He stole.” Appellant’s Br. at 9.

The government, in its brief, argues that electronically-created checks are “writings” within the definition of Article 123, and that the appellant committed forgery by uttering when he  transferred or offered to transfer the electronically-created checks. Electronic checks are “writings” because the term “siganture” and “writing” are “legal terms which necessarilyincludes signatures and/or writings using every medium imaginable (i.e., fingers in wet cement, crayons, pencils, and electronic checks).” Appellee’s Br. at 12 (citations omitted).

The government also distinguishes the N-MCCA’s opinion in Nimmons, noting that the court “did not say that ‘electronic checks’ cannot qualify as a writing or signature.” Appellee’s Br. at 15. Moreover, the government notes that the transactions in Nimmons were purely electronic, while the transactions at issue in this case resulted in the creation of actual checks by the electronic system.

Finally, the government argues that the fact that the appellant did not lie about his identity has no bearing on false nature of the electronic checks, a fact he admitted to during the plea inquiry.

In a reply brief the appellant argues that forgery by uttering presupposes forgery by making, and that in this case the making and uttering were simultaneous and inseparable. Additionally, he also states that the issue of forgery by electronic media appears to be one of first impression for CAAF.

A military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion, and questions of law related to a guilty plea are reviewed de novo. I anticipate that the oral argument will primarily discuss the question of whether electronic media can constitute a forgery (perhaps with meaningful discussion of the legislative history), and will also consider the significance of the admissions made by the appellant during the plea inquiry.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument Preview

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

Tuesday, January 10:

United States v. Dease, No: 12-6001/AF

Issue: Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

Note: Dease was an Article 62 appeal to the AFCAA. See our prior coverage linked below.

Case Links:
• AFCCA opinion
• Blog post: AFCCA Clarifies Expectation of Privacy in Urine
• Blog post: Significant search and seizure CAAF grant
• Appellant’s supplement to the petition for review
• Appellee’s (government) answer
• Blog Post: Argument Preview

Followed by:

United States v. Weeks, No. 11-0526/AF

Issue: Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief

Wednesday, January 11:

United States v. Stewart, No. 11-0440/MC

Issues:
I. Under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917?

II. Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain appellant’s conviction under specification 2 because in doing so it (1) violated the Prather legal-impossibility principle and (2) impermissibly found as facts allegations that he was found not guilty of in specification 1.

III. Whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39(a) session prior to trial.

Case Links:
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief

This week at the ACCA: On Thursday, January 12 the Army CCA will hear oral argument in United States v. Giddens, No. 20090598. The case addresses whether the accused could plead guilty to a number of Article 134 specifications that lacked terminal elements.

Issues:
I. The evidence is legally and factually insufficient to support a finding that appellant committed an indecent act, indecent exposure, aggravated sexual contact with a child, attempted sodomy, and unlawful entry (specifications 1, 2 and 4 of charge III and charge VI).

II. The military judge erred in denying the defense request for a post-trial 39(a) session and new trial after evidence was discovered, post-trial, involving AAG and AKS that bears directly on the credibility of their allegations against appellant, and as such, appellant also petitions this court for a new trial.

III. The military judge erred in denying the defense multiplicity/unreasonable multiplication of charges motion for specification 4 of charge III, touching AKS’s buttocks with appellant’s hands and penis, and charge IV, pushing appellant’s penis against the buttocks of AKS. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F., 2001).

IV. The military judge erred by not granting appellant’s motion for a mistrial after the government appointed a last minute “reasonable alternative” expert to the defense and then attacked the expert’s qualifications and time spent reviewing the case file.

Case Links:
• Appellant’s brief
• Appellee’s (government) brief

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the Coast Guard CCA.

This week at the N-MCCA: The oral argument webpage for the Navy-Marine Corps CCA indicates that the court will hear oral argument on Wednesday, January 11, however the posted schedule is from November, 2011.

The appellee consented to the search and seizure of his urine for testing on 15 June 2010. He provided a urine specimen pursuant to that consent on 16 June 2010, and the specimen was stored in the base hospital laboratory until it was shipped to the Air Force Drug Testing Laboratory (AFDTL) on 27 July 2010. On 21 June 2010, before AFDTL tested the specimen, the appellee revoked “any prior consent for search, samples or any other procedure.” AFDTL reported that the specimen tested positive for cocaine on 25 August 2010.
United States v. Dease, Jr., Misc. Dkt. No. 2011-04, slip op. at 1 (A. F. Ct. Crim. App., September 29, 2011).

The AFCCA reversed the trial military judge, ruling that: “Like delivering garbage to the curb, the appellee [Dease] voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis.” Id. at 4. Airman First Class Dease then petitioned CAAF for review, which was granted on the following issue:

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

In the supplement to the petition for review at CAAF, we learn the unusual facts of the case, which occurred in the vicinity of RAF Lakenheath in Suffolk, England. The appellant (Dease) was working as a confidential source in an Air Force Office of Special Investigations (AFOSI) undercover operation targeting a British national suspected of distributing narcotics.

On June 15, 2010, the appellant was apprehended in a vehicle with a civilian, after the civilian was observed by surveillance cameras apparently purchasing narcotics. A search of the vehicle revealed no incriminating evidence, and the appellant subsequently identified himself as an AFOSI operative, claimed that his presence in the vehicle was in connection with the operation, and consented to searches of his vehicle, quarters, and urine. The appellant also stated that the civilian had purchased crack cocaine and smoked it while the appellant drove the vehicle. The appellant denied smoking the crack, and the searches of the vehicle and quarters revealed no incriminating evidence.

On June 21, 2010 (6 days after the incident), the appellant signed a (apparently boilerplate) notification of representation memorandum with military defense counsel that included language revoking any consent for any searches. Copies of the memorandum were sent to AFOSI, the chief of military justice, and other parties. However, the urine sample provided on June 15 was tested and was positive for a metabolite cocaine. The appellant initially claimed that this was due to his mere presence in the vehicle on June 15, but eventually admitted that he had smoked cocaine that night.

In the supplement to the petition for review at CAAF, appellant argues that the AFCCA “conflates two distinct legal principles: consent and abandonment.” Supp. to Pet. at 9. Invoking a plain language reading of M.R.E. 314(e)(3), the appellant argues that testing is clearly prohibited any time after consent is withdrawn, and that consent for seizure is distinct to abandonment. The appellant also argues that the AFCCA’s reasoning, if taken to the extreme, means that the government could hold a urine sample given for some other purpose, such as medical tests, and use it to any end, such as cloning the person’s DNA.

The appellant also urges CAAF to decide the additional question of inevitable discovery, and argues that there was no probable cause for a search, nor had investigators planned to conduct a search if the appellant refused consent.

The government’s reply argues that the collection and the analysis of the urine were a single search for Fourth Amendment purposes, and that the search occurred at the time of collection and before the appellant withdrew his consent. “The United States believes there was no second search, whereas the [AFCCA] held there was no expectation of privacy when the second search occurred.” Reply to Supp. to Pet. at 12. The reply continues:

Appellant voluntarily relinquished his urine when he consented to provide a urine sample for testing. Appellant had an absolute right to revoke his consent up until the time that he provided his urine sample to the government; consent for search is never complete up until the point of seizure. The removal of the bodily fluid constituted the search of Appellant’s “person.” The urine is the object found in the search not the area or container being searched. Just as in the case of a computer, once the hard drive is copied the subsequent analysis of the data removed onto the copy does not constitute a second search. The further analysis is of the data already properly seized does not constitute an additional search each time the evidence is looked at, considered, or reanalyzed. The extraction of the data from the computer onto the mirror image ends the Fourth Amendment analysis just as the collection of the urine ends the Fourth Amendment analysis in this case. This is in complete accord with the line of cases holding that the subsequent analysis of blood had no independent Fourth Amendment significance.
Id. at 13-14 (internal citations omitted).

The government also argues, in a footnote, that the appellant failed to provide clear notice of his withdrawal of consent, because “the non-specific form letter presented would lead a reasonable individual to believe that the form letter merely served to notify individuals that Appellant was represented…” Id. at 15, note 1.

On the issue of inevitable discovery, the government argues that the facts of the case overwhelmingly support a legal determination of probably cause.

The standard of review on an Article 62 appeal is whether the trial military judge abused his discretion; questions of law are reviewed de novo and findings of fact are reviewed under the clearly-erroneous standard (the AFCCA’s well-stated rule is: “On questions of fact, we ask whether the decision is reasonable; on questions of law we ask whether the decision is correct.” Dease, Jr., slip op. at 1 (emphasis in original)). Accordingly, I anticipate Tuesday’s oral argument to focus on the law of the granted issue, unless the record is explicit on the facts surrounding the issue of the inevitability of the discovery.

Case Links:
• AFCCA opinion
• Blog post: AFCCA Clarifies Expectation of Privacy in Urine
• Blog post: Significant search and seizure CAAF grant
• Appellant’s Supplement to Petition for Review
• Appellee’s (government) Reply
• Blog post: Argument Preview

This week at CAAF: The next scheduled oral argument at CAAF is on 10 January.

This week at the ACCA: On Thursday 5 January the Army CCA will hear oral argument in United States v. Bean, No. 20100362. The case addresses whether the accused could plead guilty to a number of Article 134 specifications that lacked terminal elements.

Additionally, the Army CCA now posts electronic copies of appellate briefs in cases scheduled for oral argument! The briefs for Bean are at the following links:

• Appellant’s brief
• Appellee’s (government) brief

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the Coast Guard CCA.

This week at the N-MCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on 11 January.

The Washington Post reports:

The new commander of the Guantanamo Bay prison wants a team of government and law enforcement officials to be allowed to review all communications between lawyers and inmates accused of helping organize the Sept. 11 attacks, The Associated Press has learned.

We’ve covered such efforts to review correspondence between detainees and their counsel before, including consideration of the professional responsibility implications. However, Steve Vladeck over at Lawfare Blog takes it to a whole different level:

Separate from the policy side of this story, there’s a critical legal issue here that hasn’t yet been resolved: The AP story reports that one of the objections lodged by counsel for the defendants is that the new rules violate the defendants’ constitutional right to counsel. Of course, that assumes that the Guantanamo detainees, as non-citizens detained outside the territorial United States, have a Sixth Amendment (or perhaps a Fifth Amendment) right to counsel. Below the fold, I attempt to explain why this is, at minimum, an open question (albeit one that I think should  be answered in the affirmative).

If nothing else, this provides good context for the NCO who thinks he’s being railroaded.

No. 12-0106/AF.  U.S. v. Michael A. CISNEROS.  CCA S31871.  Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No. 12-0140/AF.  U.S. v. Jeremiah C. SLACK.  CCA S31906.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELLv. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Also, the following application for extraordinary relief was docketed on 19 December:

Misc. No. 12-8008/AR.  Julian ASSANGE, and WIKILEAKS, Appellants v. UNITED STATES OF AMERICA and Lieutenant Colonel Paul ALMANZA, Appellees.  CCA 20111146.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

LTCOL Almanza is the Article 32 Investigating Officer in the Manning case.

The “Revised Article 120″ splits sexual offenses into three Articles (plus Article 120a – Stalking) and eliminates some of the most difficult aspects of the “New Article 120.” The Revised Article 120:

• Delineates  11 offenses (including stalking):
1. Rape (Art. 120 (a))
2. Sexual Assault (Art. 120 (b))
3. Aggravated Sexual Contact (Art. 120 (c))
4. Abusive Sexual Contact (Art. 120 (d))
5. Stalking (Art. 120a)
6. Rape of a Child (Art. 120b (a))
7. Sexual Assault of a Child (Art. 120b (b))
8. Sexual Abuse of a Child (Art. 120b (c))
9. Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
10. Forcible Pandering (Art. 120c (b))
11. Indecent Exposure (Art. 120c (c))
• Simplifies defenses to include all defenses available under the Rules for Courts-Martial (of note: An accused must prove a marriage or mistake of fact as to age (defenses to certain offenses with a child) by a preponderance of the evidence).
• Repeals language that eliminated “consent” and “mistake of fact as to consent” as issues (except for offenses against children (Art. 120b)).
• Repeals the burden-shift for an affirmative defense (Art. 120 (t)(16)).
• Expands the definition of “bodily harm” to explicitly include non-consensual sexual acts and contact.
• Expands the definition of “sexual act” to include contact between the penis and the “vulva or anus or mouth,” and to include penetration of the vulva or anus or mouth by “any part of the body” or object.
• Expands the definition of “sexual contact” in include touching of “any body part of any person” if done with requisite intent.

After the break I reproduce the “revised” text, noting repealed sections of the “new” text with strikeouts, new language in the “revised” text with underlines, and my notations in italics.

§ 920. Art. 120. Rape and Sexual Assault Generally

Contents (not part of legislative text):
(a) Rape.
(b) Sexual assault.
(c) Aggravated sexual contact.
(d) Abusive sexual contact.
(e)  Proof of threat.
(f) Defenses.
(g) Definitions.
          (1) Sexual act.
          (2) Sexual contact.
          (3) Bodily harm.
          (4) Grievous bodily harm.
          (5) Force.
          (6) Unlawful Force
          (7) Threatening or placing that other person in fear.
          (8) Consent.

(a) Rape. Any person subject to this chapter who causes commits a sexual act upon another person of any age to engage in a sexual act by—

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering another person unconscious; or

(5) administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

(b) Rape of a child. Incorporated in Article 120b (a) – Rape of a Child.

(b) (c) Aggravated Sexual assault. Any person subject to this chapter who—

(1) commits a sexual act upon another person causes another person of any age to engage in a sexual act by—

(A) threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or

(B) causing bodily harm to that other person; or

(C) making a fraudulent representation that the sexual act serves a professional purpose; or

(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;

(2) engages in commits a sexual act upon with another person when the person knows or reasonably should know that the other person is asleep, unconscious, or other unaware that the sexual act is occurring; or

(3) commits a sexual act upon another person when the other person is incapable of consentinf to the sexual act due to-

(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or

(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;

of any age if that other person is substantially incapacitated or substantially incapable of—

(A) appraising the nature of the sexual act;

(B) declining participation in the sexual act; or

(C) communicating unwillingness to engage in the sexual act;

is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

(d) Aggravated sexual assault of a child. Incorporated in Article 120b (b) – Sexual Assault of a Child.

(c) (e) Aggravated sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

(d) (h) Abusive sexual contact. Any person subject to this chapter who engages in commits or causes sexual contact with upon or by another person, if to do so would violate subsection (c) (b) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

(f) Aggravated sexual abuse of a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(g) Aggravated sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(i) Abusive sexual contact with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(j) Indecent liberty with a child. Incorporated in Article 120b (c) – Sexual Abuse of a Child.

(k) Indecent act. Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct. Incorporated in Article 120c(a) – Indecent Viewing, Visual Recording, or Broadcasting.

(l) Forcible pandering. Moved to Article 120c (b) – Forcible Pandering.

(m) Wrongful sexual contact. Repealed. Incorporated into Art. 120 (c) Abusive sexual contact, by the expanded definition of  bodily harm at Art. 120 (g)(3).

(n) Indecent exposure. Moved to Article 120c (c) – Indecent Exposure.

(o) Age of child. Incorporated in Article 120b (c)(d) – Age of Child.

(e)  (p) Proof of threat. In a prosecution under this section, in proving that the accused a person made a threat, it need not be proven that the accused person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Defenses – An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial [sic]. Marriage is not a defense for any conduct in issue in any prosecution under this section.

(q) Marriage. Incorporated in Article 120 (f) – Defenses.

(r) Consent and mistake of fact as to consent. Incorporated in Article 120 (f) – Defenses.

(s) Other affirmative defenses not precluded. Incorporated in Article 120 (f) – Defenses.

(g) (t) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening vulva or anus or mouth of another by a hand or finger any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact. The term “sexual contact” means the intentional touching,

(A) touching, or causing another person to touch, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, any body part of any person, with an intent to abuse, humiliate, or degrade any person or, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

(3) (8) Bodily harm. The term “bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

(4) (3) Grievous bodily harm. The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18.

(4) Dangerous weapon or object. Repealed.

(5) Force. The term “force” means action to compel submission of another or to overcome or prevent another’s resistance by –

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or

(C) inflicting physical harm sufficient to coerce or compel submission by the victim.

(6) Unlawful Force – The term ‘unlawful force’ means an act of force done without legal justification or excuse.

(7) Threatening or placing that other person in fear. Repealed.

(7) (6) Threatening or placing that other person in fear. The term “threatening or placing that other person in fear” under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping the wrongful action contemplated by the communication or action.

(8) (14) Consent.

(A) The term “consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

A person cannot consent to sexual activity if—

(A) under 16 years of age; or

(B) substantially incapable of—

(i) appraising the nature of the sexual conduct at issue due to

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

(9) Child. The term “child” means any person who has not attained the age of 16 years. Incorporated in Article 120b (d) – Age of Child.

(10) Lewd act. The term “lewd act” means— Repealed, but see Article 120 (b)(h)(5) – Lewd Act.

(11) Indecent liberty. The term “indecent liberty” means indecent conduct, but physical contact is not required. Incorporated in Article 120b (h)(5) – Lewd Act.

(12) Indecent conduct. Incorporated in Article 120b (h)(5) – Lewd Act; and Article 120 (c)(a) – Indecent Viewing.

(13) Act of prostitution. The term “act of prostitution” means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation. Incorporated in Article 120c (d)(1).

(15) Mistake of fact as to consent. Repealed.

(16) Affirmative defense. Repealed.

§ 920a.  Art. 120a. Stalking  Unchanged

§ 920b.  Art. 120b. Rape and sexual assault of a child

Contents (not part of legislative text):
(a) Rape of a Child.
(b) Sexual Assault of a Child.
(c) Sexual Abuse of a Child.
(d) Age of Child.
(e) Proof of Threat.
(f) Marriage.
(g) Consent.
(h) Definitions.
          (1) Sexual Act and Sexual Contact.
          (2) Force.
          (3) Threatening or Placing That Child in Fear.
          (4) Child.
          (5) Lewd Act.

(a) Rape of a Child- Any person subject to this chapter who– (Formerly Article 120 (b))

(1) engages in a commits a sexual act with a upon a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

(2) commits a sexual act upon a child who has attained the age of 12 years by–

(A) using force against any person;

(B) threatening or placing that child in fear;

(C) rendering that child unconscious; or

(D) administering to that child a drug, intoxicant, or other similar substance;

is guilty of rape of a child and shall be punished as a court-martial may direct.

(b) Sexual Assault of a Child- Any person subject to this chapter who engages in commits a sexual act with upon a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (d))

(c) Sexual Abuse of a Child- Any person subject to this chapter who engages in commits a lewd act with upon a child is guilty of aggravated sexual abuse of a child and shall be punished as a court-martial may direct. (Formerly Article 120 (f))

(d) Age of Child- (Formerly Article 120 (o))

(1) Under 12 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years the age of the other person engaging in the sexual act or lewd act. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) Under 16 Years- In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(e) Proof of Threat- In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Marriage- In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is an affirmative defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused. (Formerly Article 120 (q))

(g) Consent- Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.

(h) Definitions- In this section:

(1) Sexual Act and Sexual Contact- The terms `sexual act’ and `sexual contact’ have the meanings given those terms in section 920(g) of this title (article 120(g)).

(2) Force – The term ‘force’ means–

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or

(C) inflicting physical harm.

In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

(3) Threatening or Placing That Child in Fear- The term ‘threatening or placing that child in fear’ means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

(4) Child- The term ‘child’ means any person who has not attained the age of 16 years.

(5) Lewd Act- The term `lewd act’ means–

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

§ 920c.  Art. 120c. Other sexual misconduct

Contents (not part of legislative text):
(a) Indecent Viewing, Visual Recording, or Broadcasting.
(b) Forcible Pandering.
(c) Indecent Exposure.
(d) Definitions.
          (1) Act of Prostitution.
          (2) Private Area.
          (3) Reasonable Expectation of Privacy.
          (4) Broadcast.
          (5) Distribute.
          (6) Indecent Manner.

(a) Indecent Viewing, Visual Recording, or Broadcasting- Any person subject to this chapter who, without legal justification or lawful authorization– (1) knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy;

(2) knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy; or

(3) knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);

is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering- Any person subject to this chapter who compels another person to engage in an act of prostitution with another any person to be directed to said person is guilty of forcible pandering and shall be punished as a court-martial may direct. (Formerly Article 120 (l)).

(c) Indecent Exposure- Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct. (Formerly Article 120 (n)).

(d) Definitions- In this section:

(1) Act of Prostitution- The term ‘act of prostitution’ means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) or lewd act on account of which anything of value is given to, or received by, any person for the purpose of receiving money or other compensation. (Formerly Article 120 (t)(13))

(2) Private Area- The term ‘private area’ means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(3) Reasonable Expectation of Privacy- The term ‘under circumstances in which that other person has a reasonable expectation of privacy’ means–

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.

(4) Broadcast – The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(5) Distribute- The term ‘distribute’ means delivering to the actual or constructive possession of another, including transmission by electronic means.

(6) Indecent Manner- The term ‘indecent manner’ means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

This week at CAAF: The next scheduled oral argument at CAAF is on 10 January.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on 5 January.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the Coast Guard CCA.

This week at the N-MCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on 9 January.

The appellant’s counsel began her argument with two theories of error: (1) that the military judge failed to ensure the appellant understood that he was pleading to an uncharged offense, and (2) that the court-martial lacked jurisdiction. She also argued that the issue is not one of notice (Miller and Jones were decided before this case was tried), but one of knowing and voluntary waiver of constitutional due process rights. One interesting fact discussed early in the argument was that while the accused pleaded guilty to provoking speech under Article 117, the government proceeded to trial on the merits of the charged offense of communicating a threat under Article 134. She used this fact to argue that there was no constructive referral of the Article 117 offense, because the convening authority not only did not agree to the change, but also directed trial on the original offense.

Judge Ryan asked the appellant’s counsel to assume that the court rejected the jurisdictional claim. Counsel responded that the trial military judge still committed error in that he failed to advise the appellant that he was pleading to an uncharged offense. This raised the question of prejudice, as both Judge Ryan and Judge Stucky tried to identify how the appellant suffererd prejudice to a substantial right. They stated that issues regarding the knowing and voluntary nature of the plea, and the fact that there is a conviction of an uncharged offense, are the error, not the prejudice. Then, Chief Judge Baker (I think) pointed out that the maximum penalty for the 117 offense is far less than the maximum penalty for the 134 offense.

Chief Judge Baker then led a discussion about the jurisdictional question, asking about the need for the convening authority to refer, or otherwise approve, a change under these circumstances.

Counsel for the government began his argument with a discussion of the pleading-elements test (see the argument preview, linked below), arguing that the test is still good law. However, the government conceeded that under the facts of this case, the Article 117 offense is not a LIO of the Article 134 offense. But, he argued, the conviction alone cannot be the prejudice, citing to McMurrin for the principle that the error is not structural (and distinguishing the facts of Jones and Girouard).

Chief Judge Baker asked, “can the defendant charge himself or herself in a court-martial?” (Argument audio at 19:50). The government answered this in the negative, but the ensuing discussion focused on how major of a change can be made to a charge before the convening authority must take some action in referral in order to give the court-martial jurisdiction to try the different offense. The government’s counsel suggested that this is a question the court has not answered.

Finally, the argument returned to the question of constructive referral, and different theories of how the 117 charge could have properly been before the court-martial. The government’s position was that the change from Article 134 to Article 117 amounted to a major change that should be tested for plain error, and that the court-martial did not lack jurisdiction.

In rebuttal the appellant’s counsel argued that the standard of review should be abuse of discretion, and that there was no major change to the charges in this case, based in part on the fact that the government went forward with the original charge. Chief Judge Baker then asked why the court could not presume that the convening authority had intended to refer the Article 117 offense based on the fact that the Manual for Courts-Martial lists it as a LIO of the charged offense, and the convening authority likely relied on this when making his referral decision (separating the issues of a defective charge and a defective referral). The appellant’s counsel answered that there is insufficient evidence in the record to attribute this decision-making process to the convening authority.

Case links:
• ACCA opinion (unavailable on CCA’s website, Westlaw, or Lexis)
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• Blog post: Argument recap

No. 09-0519/NA.  U.S. v. Michael S. HODGE.  CCA 200601124.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 11-0647/MC.  U.S. v. Marchello K. HANCOCK.  CCA 201000400.  Review granted on the following issue:

AS IN UNITED STATES v. FOSLER, THE ARTICLE 134 SPECIFICATION FAILED TO ALLEGE EITHER POTENTIAL TERMINAL ELEMENT AND THEREFORE FAILED TO STATE AN OFFENSE.  COULD APPELLANT PLEAD GUILTY TO A SPECIFICATION THAT FAILED TO STATE AN OFFENSE?

No. 12-0071/AR.  U.S. v. Robert M. BIGBACK.  CCA 20101044.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 12-0073/MC.  U.S. v. Mark A. Leubecker.  CCA 201100091.  Review granted on the following issue:

WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE.

No. 12-0099/AR.  U.S. v. Matthew J. MCCLAIN.  CCA 20090446.  Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY.

No. 12-0131/AR.  U.S. v. Robert L. MURCHISON.  CCA 20101052.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF ADDITIONAL CHARGE II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

The Air Force CCA finds that specifications alleging indecent acts with a child under Article 134, that do not allege a terminal element, provide sufficient notice of criminality, and affirms. The court notes that the appellant did not object to the specifications, did not object to the trial military judge’s instructions regarding the terminal elements, and concedes that specifications challenged for the first time on appeal will be liberally construed in favor of validity. United States v. Wilson, No. 37486 (A. F. Ct. Crim. App., December 15, 2011).

The Army CCA, while evaluating the factual sufficiency of a conviction for violation of a lawful general regulation that prohibited relationships between permanent party personnel and those undergoing initial entry training (IET), the court noted that the accused was a MOS trainee – neither permanent party nor undergoing IET. So, perhaps in the spirit of the season, it rules: “Equating MOS trainees to permanent party – grandmothers to toads?” United States v. Jones, No. 20090401 (A. Ct. Crim. App., December 14, 2011).

The Coast Guard CCA makes quick work of “anomalies” in the record and affirms, despite “ambiguous” findings on one charge, “no announcement” of findings to the specification in another, “irregular renditions of pleas,” a confusing promulgating order, and a charge sheet with a specification (to which the appellant pleaded guilty of a LIO) lined out by the trial counsel with the notation “withdrawn and dismissed without prejudice.” United States v. Barker, No. 1340 (C. G. Ct. Crim. App., November 17, 2011).

The Navy-Marine Corps CCA, summarily affirming findings and sentence, drew a concurring opinion that appears to be a clemency recommendation. Noting the operational history of the appellant (a 12-year Staff Sergeant convicted, pursuant to his pleas, of a series of relatively-small larcenies from the Marine Corps Exchange), including his receipt of a Purple Heart, Judge Harris wonders if faster action by the Exchange and the command wouldn’t have avoided the “truly sad” end of the appellant’s career. United States v. Booker, No. 201100432 (N-M Ct. Crim. App., December 13, 2011).