CAAF will hear oral argument in United States v. Brown, No. 13-0244/NA, on Tuesday, May 14, 2013. The case involves a challenge to the trial military judge’s ruling allowing a “victim advocate” to sit with a 17 year old alleged victim during her testimony on the merits. CAAF granted review of the following deep-format issue:

Generally, outside the military justice system, witness attendants may accompany a child on the witness stand if the prosecution shows good cause and the trial judge makes a finding of compelling or substantial need. Here, without good cause shown and without findings of compelling or substantial need, the military judge allowed a victim advocate to serve as a witness attendant for a seventeen-year-old; then the military judge referred to the witness attendant as the complainant’s “advocate” before the members. Did this procedure violate appellant’s presumption of innocence and right to a fair trial?

The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of two specifications of rape of a child, one specification of aggravated sexual abuse of a child, two specifications of child endangerment, and three specifications of indecent liberties with a child, in violation of Articles 120 and 134, UCMJ. He was sentenced to reduction in rank to pay-grade E-1, confinement for forty-five years, and a dishonorable discharge.

In 2009 the Appellant was accused of having provided alcohol and pornography to his two step-daughters. He was also alleged to have sexually assaulted one of the girls, [AW], from 2004 to 2008. In 2011, AW, then almost 18 years old, testified at the Appellant’s court-martial. However, she began crying uncontrollably at the beginning of the prosecution’s direct examination. The members were excused and the military judge asked the prosecution how it would proceed. Trial counsel asked the judge to allow AW’s “victim advocate” to sit next to her in the courtroom during her testimony. Over objection from the defense, the military judge permitted the victim advocate to sit next to the witness throughout her testimony. The military judge also provided an instruction to the members about the presence of the advocate. AW then testified about the Appellant’s numerous sexual assaults of her, and the Appellant was convicted.

A three judge panel of the NMCCA reviewed the case and heard oral argument in August, 2012. It then issued an unpublished opinion that rejected the Appellant’s challenge to the presence of the victim advocate:

We find that the presence of the advocate in the bailiff’s chair during AW’s testimony, or labeling her to the members as an “advocate,” did not impinge on the appellant’s constitutional right to a fair trial or his rights under the Sixth Amendment’s Confrontation Clause. Because we reject the appellant’s claims of constitutional violations, we review the military judge’s decision to allow the victim advocate in the courtroom for an abuse of discretion, and conclude the military judge did not abuse his discretion in this regard.

United States v. Brown, No 201100516, slip op. at 7 (N-M.Ct.Crim.App. Nov 28, 2012) (unpublished).

In his brief to CAAF, the Appellant argues that allowing a victim advocate to accompany “a complainant” on the witness stand “erodes the presumption of innocence and violated an accused’s due process right to a fair trial. The accommodation is inherently prejudicial.” App. Br. at 9. The Appellant asks CAAF to apply “close judicial scrutiny” based on the Supreme Court’s decision in Holbrook v. Flynn, 475 U.S. 560, 568 (1986), and argues that the presence of the victim advocate requires “compelling or substantial need.” Slip op. at 11. Alternatively, if not inherently prejudicial, the brief argues that the presence of the victim advocate was prejudicial to the Appellant’s constitutional right to due process, and further that it was compounded by the military judge’s introduction of the advocate as AW’s “advocate,” combining to amount to a non-harmless constitutional error. App. Br. at 9-10.

The Appellant’s argument that the presence of the advocate was inherently prejudicial, requiring close judicial scrutiny, is based on the principle that “appearances matter at trial.” App. Br. at 11. The brief identifies a number of situations that have risen to the level of inherent prejudice, such as: the presence of four uniformed state troopers seated behind the defense, a defendant in prison garb or shackles, a trial judge meeting a child witness at the gallery gate and then escorting that child to the witness stand, a judge rewarding a child victim with candy at the conclusion of her testimony, and a victim advocate sitting behind the witness with her hands on her shoulders during testimony. App. Br. at 12. However, the brief notes that such inherent prejudice does not necessarily require reversal, as the Supreme Court noted in Holbrook that “close scrutiny of inherently prejudicial practices has not always been fatal.”App. Br. at 12-13 (quoting Holbrook, 47 U.S. at 568-732).

On this point the Appellant’s brief concludes that:

With [the advocate] by her side, AW became an unfairly enhanced witness, doubled in presence and power. The advocate underscored the fragile, emotional state of A.W. as she sat silently beside her. Needing someone to blame, it became far too easy to point to the man seated at the defense table–MA1 Brown.

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CAAF will hear oral argument in United States v. Solomon, No. 13-0025/MC, on Wednesday, March 20, 2013, at the U.S. Naval Academy, Annapolis, MD, as part of Project Outreach. The issues before the court are:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

“At trial, Appellant’s roommate, Lance Corporal [K], testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K claimed Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him. After taking Appellant’s cell phone, LCpl K claimed he saw three photographs of his own genitals on the phone. LCpl K then reported the incident to the barracks duty officer.” App. Br. at 3 (citations to record omitted).

The Appellant was previously tried for alleged sexual assaults on two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, likely because “evidence at trial showed Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls [B] and R at the very time that LCpls [B] and [R] claimed he assaulted them.” App. Br. at 4. Nevertheless, the military judge allowed the Government to present the testimony of LCpls [B] and [R] at this trial, finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413.

M.R.E. 404 is the general prohibition on admission of evidence of a person’s character for the purpose of proving that the person acted in conformity with their character on a particular occasion (i.e., propensity evidence). However, M.R.E. 404(b) explains that evidence of a person’s other actions is admissible for non-character purposes, such as to prove motive, knowledge, or plan. Additionally, M.R.E. 413 creates an exception to the general prohibition of M.R.E. 404 in that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

During closing argument, the Trial Counsel made statements vouching for the believability of LCpls [B] and [R], such as “they were believable,” “we should believe [them],” and “what they said was true.” App. Br. at 6. The Trial Counsel also characterized the defense theory of the case as “smoke and mirrors,” and said it was “absolutely, absolutely, absolutely ridiculous,” and also “absolutely preposterous.” Id.

The Appellant was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of abusive sexual contact, indecent conduct, drunk and disorderly conduct, and obstruction of justice in violation of Articles 120 and 134. He was also convicted pursuant to his pleas of violating a lawful order and wrongful use of a controlled substance in violation of Articles 92 and 112a. The convening authority approved the adjudged sentence of confinement for six years, reduction to pay grade E-1, total forfeitures and a dishonorable discharge.

The NMCCA reviewed the case for three assignments of error: the two questions before CAAF, and a third error in the failure to allege a terminal element in the drunk and disorderly and obstruction of justice charges. Applying Humphries, the CCA found error in the failure to allege the terminal element, and set aside these convictions. The CCA then reassessed the sentence and reduced the confinement from six years to four years. I’ve fallen behind on tracking this issue, but this might be the first instance of a CCA granting meaningful relief under Humphries.

The CCA found no error in admitting the prior allegations under M.R.E. 413 (while noting that if it was error under 413, the evidence could not be saved by 404(b), since the members were not instructed on the limited uses of evidence under 404(b)). Additionally, the CCA acknowledged that the trial counsel used “injudicious language,” but found that even assuming the argument was improper, it did not amount to plain and obvious error (as there was no objection from the defense). But a dissenting opinion by Judge Beal takes the opposite view (disclaimer: just last week I tried a case as co-counsel with the now-retired Judge Beal).

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CAAF will hear oral argument in United States v. Medina, No. 13-5002/CG, on Tuesday, March 12, 2013, after it hears argument in United States v. Coleman. The Judge Advocate General of the Coast Guard certified two issues in Medina after the Coast Guard CCA set-aside the Appellee’s plea of guilty to a charge of consensual sodomy upon finding that the trial judge failed to adequately advise the Appellee about the zone of privacy recognized by Lawrence v. Texas and the Marcum factors that can overcome it in a military context. CAAF will consider the following issues:

I. Whether the Coast Guard Court of Criminal Appeals erred by applying the providency requirements of Hartman in a case where the facts elicited during the providency inquiry revealed that the sexual activity fell outside of the constitutional protections bounded by Lawrence v. Texas because it involved a recent, prior trainer-trainee relationship.

II. Assuming a Hartman inquiry is required, what constitutes a sufficient colloquy between the military judge and an accused to support a plea of guilty to the specification of sodomy under the standard set forth in Hartman.

In United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), the Appellant was convicted, pursuant to his plea before a military judge sitting as a general court-martial, of a single specification of consensual sodomy, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. But in a unanimous opinion drafted by then Chief Judge (now Senior Judge) Effron, CAAF set-aside the findings. The opinion is short, and includes the following discussion:

During the plea inquiry in the present case, the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the Manual for Courts–Martial (MCM), which describes various forms of sexual conduct between two people. Consistent with Care, the military judge asked Appellant to explain in his own words why he believed he was guilty of the offense. Appellant responded by describing the nature of the sexual conduct between himself and the other party to the sexual act. The inquiry did not reflect consideration of the Marcum framework.

At the conclusion of the military judge’s colloquy with Appellant, he asked counsel if either desired any further inquiry. The trial counsel then engaged in a discussion with the military judge about Lawrence and Marcum. Trial counsel asked the military judge to pose questions to the accused about the location of the act of sodomy, the presence of any other person in the room, and the military relationship between Appellant and the other person involved in the sexual act. In response to the questions from the military judge, Appellant stated that the incident took place at the Transient Visitors Quarters on a U.S. Navy facility; that the other participant in the sexual activity was a member of the Navy assigned to the same ship as Appellant; and that a third shipmate “was present and asleep in the room” at the time of the charged act of sodomy. The military judge did not explain to Appellant the significance of the questions, nor did the military judge ask Appellant whether he understood the relationship of the questions and answers to the distinction drawn in Lawrence and Marcum between constitutionally protected behavior and criminal conduct.

The fundamental requirement of plea inquiry under Care and R.C.M. 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct. A discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused. In the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, we cannot view Appellant’s plea as provident. See O’Connor, 58 M.J. at 454.

Hartman, 69 M.J. at 468-69. Medina is an almost-identical case, except that in addition to consensual sodomy the Appellee was also convicted, pursuant to his pleas, of assault consummated by a battery, in violation of Article 128, UCMJ, and was sentenced to confinement for 13 months, reduction to E-1, and a bad-conduct discharge. The CGCCA’s opinion includes this discussion:

The military judge was clearly attempting to elicit from Appellant facts supporting a conclusion that his conduct fell outside of a constitutionally protected liberty interest and the Marcum factors. But this discussion fell short of Hartman‟s requirements. The military judge did not explain to or discuss with Appellant why his particular conduct was of such a nature that it fell outside the bounds of a constitutionally protected liberty interest. Although the military judge indirectly touched on the fact that Appellant‟s sexual acts with someone who had recently been a “boot” under his charge as a company commander could potentially override the liberty interest, there was no further explanation beyond a bare inquiry into the existence of the former company commander relationship and the E-6/E-3 grade differential. The record also does not establish that Appellant was pleading guilty because he believed his conduct was outside the scope of sexual conduct protected under current case law. For these reasons, we hold Appellant‟s guilty plea to consensual sodomy was improvident, and we set aside the conviction.

United States v. Medina, 71 M.J. 652, 654 (C.G.Ct.Crim.App. 2012). The CCA then split on the question of sentence reassessment, and remanded the case for a rehearing. The next month, in December, 2012, the JAG certified the case to CAAF.

Adding to the mix, Medina comes at a time when CAAF is also considering whether the Marcum factors are the functional equivalent of elements in United States v. Castellano, No. 12-0684/MC.

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CAAF will hear oral argument in United States v. Coleman, No. 13-0007/AR, on Tuesday, March 12, 2013, at 9:30 a.m. The court granted review of the following issue:

Whether the military judge erred in failing to grant a defense motion for mistrial based on the trial counsel’s failure to disclose that appellant’s co-accused testified against him in exchange for the staff judge advocate’s recommendation that his sentence be reduced by twelve months.

In 2010 the Appellant, an E-4 in the Army, was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of rape and adultery, in violation of Articles 120 and 134, UCMJ. He was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved only five of the ten years of confinement.

The case began – as so many do – during a night of drinking. The Appellant and a co-accused [PFC Pilago] eventually had a sexual encounter with the female victim, [D.D.]. “At trial, the Appellant faced alternative theories of criminal liability for his conduct towards D.D. The prosecution argued that D.D. was either too incapacitated to consent to sexual intercourse or that appellant forced D.D. to engage in sexual intercourse ‘by using strength and power sufficient that she could not avoid or escape the sexual contact.’” App. Br. at 3.

The day before the Appellant’s court-martial, PFC Pilago was convicted, contrary to his pleas, of forcible sodomy and adultery for his actions with D.D. PFC Pilago was sentenced to confinement for 42 months and a dishonorable discharge. He was then called as a prosecution witness in the Appellant’s court-martial, where he confirmed that during the assault of D.D. he told the Appellant that “she said stop,” but that the Appellant told him “just to keep going.”

However, “immediately prior to calling PFC Pilago to the witness stand, defense counsel specifically asked government counsel if there was a deal in place with PFC Pilago. The trial counsel responded ‘No, there’s nothing in writing.’ The military judge noted that he found trial counsel’s response ‘troubling.’” App. Br. at 5 (citations to record omitted). After the Appellant was convicted, the trial defense counsel learned that PFC Pilago testified in exchange for the staff judge advocate’s recommendation that the convening authority reduce his sentence by 12 months.

A post-trial 39(a) session was conducted, and the military judge concluded that the trial counsel had failed to disclose the agreement between PFC Pilago and the convening authority, and that the agreement was “favorable and material to the defense trial preparation and should have been disclosed.” App. Br. at 9. However, the military judge found that this error was harmless beyond a reasonable doubt, and he denied a defense motion for a mistrial.

Among the considerations was an incriminating statement PFC Pilago gave to criminal investigators shortly after the assault. That statement was consistent with his testimony at the Appellant’s trial. Additionally, the trial defense counsel actually called PFC Pilago as a defense witness to testify that D.D. was not incapacitated and that he and the Appellant had engaged in consensual sexual contact with her earlier that evening. Finally, the trial defense counsel did not impeach PFC Pilago on any grounds. Considering these factors, and particularly that PFC Pilago’s statement to criminal investigators was consistent with his trial testimony for the prosecution, the ACCA found:

If the requisite disclosure had been made by the government and the trial defense counsel had chosen to impeach PFC Pilago by asking him if he was providing his in-court testimony in exchange for the clemency agreement, we have no doubt the government would have been successful in introducing PFC Pilago’s prior consistent statement under Mil. R. Evid 801(d)(1)(B). The statement was consistent with PFC Pilago’s in-court testimony and was made more than nine months prior to PFC Pilago’s conviction and his agreement with the SJA. Furthermore, if admitted under Mil. R. Evid 801(d)(1)(B), the detailed incriminating written statement would have constituted substantive evidence that could have been used against appellant to further corroborate DD’s allegations against appellant.

Having been presented with no plausible scenario in which we believe appellant ultimately would have been benefited by the use of the agreement to attack the credibility of PFC Pilago, we agree that the government met its burden of showing that the failure to disclose the agreement was harmless beyond a reasonable doubt.

United States v. Coleman, No. ARMY 20100417, slip op. at 7-8 (A.Ct.Crim.App. Jul. 9, 2012) (mem. op.) (citations omitted).

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CAAF will hear oral argument in United States v. Kelly, No. 12-0524/AR, on Tuesday, February 26, 2013, at 9:30 a.m, at the University of Arizona, James E. Rogers College of Law, Tucson, Arizona, on the following issues:

I. Whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States.
II. Whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not “certain” or “absolutely clear” that it would be returned to the wounded-warrior Appellant.
III. Whether the examination of the contents of Appellant’s computer was an unlawful inspection under M.R.E. 313(b).

When a young man goes to war in the 21st century, he takes with him the accessories of modern life, including a laptop computer. And if he is injured, as the Appellant in Kelly was when his four-vehicle convoy struck a roadside bomb in Iraq in April, 2007, his personal effects are inventoried. An Army policy in effect at the time required that the effects of a dead or missing soldier be sent to the Joint Personnel Effects Depot (“JPED”) to be screened for classified material or any other material “that may cause embarrassment or
added sorrow if forwarded to an eligible recipient.” And while this Appellant was not dead or missing, his effects were sent to the JPED, and his personal computer was examined. The computer was first searched for classified material, with negative results. It was then searched for “gore, porn, and inappropriate,” and child and adult pornography was discovered, leading to charges of an orders violation (because possession of otherwise-lawful pornography was prohibited in Iraq) and of possession of child pornography.

At trial, the Appellant unsuccessfully moved to suppress the evidence discovered on his computer. He then entered conditional pleas of guilty of violating a general order and possession of child pornography, in violation of Articles 92 and 134. He also entered unconditional pleas of guilty of attempted larceny, larceny, and fraudulent claims, in violation of Articles 80, 121, and 132 (based on acts that occurred while he was pending trial on the pornography offenses). A military judge sitting as a general court-martial convicted the Appellant pursuant to his pleas, and sentenced him to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. The Convening Authority reduced the confinement to 17 months.

The Army CCA reviewed the case and affirmed the military judge’s denial of the motion to suppress, finding that the examination of the Appellant’s computer by JPED was a valid inventory pursuant to M.R.E. 313(c). In particular, the ACCA noted:

We reject appellant’s argument that in this particular case the inventory, which included a secondary search for pornographic material, was unreasonable because it was not conducted for any legitimate government purpose. Appellant argues that because the government knew the personal effects were going back to the appellant, there was no reason to conduct a search in order to remove items that might cause sorrow or embarrassment to the recipient. Under our review, however, we do not find in the record that the government knew for certain that the personal effects, including the laptop computer, would be going directly to appellant, thus avoiding the question of whether or not the appellant could be embarrassed by his own possessions. Although there is some evidence that the government was rushing the case in order to get the effects back to appellant, we do not find that it was clear that the personal effects would be going to him directly or to him through a [person eligible to receive effects]. The test used to assess the conduct of the inventory is whether it was reasonable under all the circumstances, and we concur with the military judge in this case that the inventory was conducted reasonably. In fact, only if it was absolutely clear that personal effects would be going directly to appellant could we get to an issue over whether the secondary search might not have been reasonable. It is doubtful, however, that this scenario could ever occur unless an injured soldier actually appeared at the doors of the JPED, and that is not the case here.

United States v. Kelly, No. 20090809, slip op. at 5 (A.Ct.Crim.App. Mar. 27, 2012) (internal citation omitted) (unpublished). CAAF granted review of the first two issues in September, 2012, and then specified the third issue on February 4, 2013.

The Appellant’s brief on the granted issues takes 21 pages to get to what I think is the central theme:

a. The inventory process was invoked as a pretext to ferret out possible evidence of a crime

The government could not conduct an “inventory” search for classified information or pornography on a wounded soldier’s computer without it being a pretext to discover evidence of a crime. Due to applicable statutes, regulations, and punitive orders that applied to SSG Kelly at the time government agents searched his computer, any “inventory” to discover classified information or any form of pornography amounts to government action seeking evidence of a crime. These acts remove this type of search from the inventory exception of Mil. R. Evid. 313(c).

As noted above, even if the government had a legitimate purpose in searching SSG Kelly’s computer for classified information, that purpose disappeared once agents discovered there was no classified information on it. The reason for the second search, to prevent sorrow or embarrassment to a PERE, did not exist in this case. Any invocation of an inventory was nothing more than a pretext to conduct a search for possible evidence of a crime. “In most cases the inventory will not uncover any matter relevant to a criminal prosecution. This circumstance alone tends to the conclusion that it was not designed as a subterfuge for a search without probable cause.” Kazmierczak, 16 U.S.C.M.A. at 600, 37 C.M.R. at 220. However, due to the applicability of GO#l and AR 380-5, any government search of SSG Kelly’s computer for pornography or classified information that found such files would constitute direct evidence of crime.

App. First Br. at 21-22. The Government’s response begins with a discussion of inventory searches in general, particularly police inventories of impounded vehicles (Gov’t First Br. at 14-15) and of an arrestee’s person and possessions upon arrival at the stationhouse (Gov’t First Br. at 15-16). The Government then invokes the Government’s “interest in avoiding further sorrow and embarrassment to whoever receives the personal effects,” which it claims is “reasonable and legitimate.” Id. at 20. It argues that “examining the contents of a computer is comparable to pursuing another’s mail or examining the contents of a closed suitcase.” Id. at 23. And it concludes that “The Army has a reasonable interest in alleviating any further suffering or embarrassment for appellant, his family, and his loved ones. An inventory that sanitizes those materials, pursuant to a standard operating procedure, is reasonable in this case.” Id. at 25. The Government also argues that the searches were “the functional equivalent of a boarder search.” Id. at 28.

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CAAF will hear oral argument in United States v. Gaskins, No. 13-0016/AR, on Tuesday, February 19, 2013. The court granted review of two issues:

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

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

Article 54, UCMJ, requires preparation of “a complete record of the proceedings and testimony,” and Rule for Courts-Martial 1103 provides that when a verbatim transcript cannot be prepared, due to loss of the recording, notes, or other reason, the convening authority may approve no sentence greater than confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to E-1 (a “non-verbatim sentence”); or the convening authority may direct a rehearing (i.e., redo the entire trial) as to any offense of which the accused was found guilty.

Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that continues next week at CAAF, a half-decade later.

The “good soldier book” was a “completely filled 3-inch binder, consisting of Appellant’s Marine Corps service record book, numerous awards from his time in both the Marines and the Army, and photographs and other documentary evidence sufficient to merit consideration by the panel in mitigation.” Appellant’s Br. at 10. It was presented to the members during sentencing and then vanished, and there were (apparently) no copies, tables of contents, summaries of the contents, or other means to adequately recreate the Exhibit.

But despite the language of RCM 1103, the Convening Authority approved the adjudged sentence. On direct review, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Curiously, all three judges who participated in the oral argument dissented from the court’s opinion in the case. One of them, Judge Ham the Great, authored a whopping 23-page dissent, that made us wonder in this post “if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back [from Judge Ham, who soon thereafter departed the ACCA]?”

But then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished) setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge. Subsequently, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of the two issues shown above.

The case arrives at CAAF with a big question, a little question, and an unasked question. The Big Question (Issue I) is if the options of a non-verbatim sentence or a complete rehearing are the exclusive remedies for an incomplete record. The Little Question (Issue II) is the familiar Fosler issue, with an appellate wrinkle. And the Unasked Question is if the Appellant’s defense counsel can be ordered to affirm under oath that the missing exhibit didn’t end up in their case files…

The Appellant’s brief presents the missing exhibit issue in four parts: First, the loss of the exhibit is a “substantial omission” that renders the record incomplete, creating a presumption of prejudice that the Government must rebut (recognized in caselaw; see United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981)). App. Br. at 9. Second, the Government has failed to meet its burden to rebut that presumption of prejudice caused by the incomplete record. App. Br. at 11. Third, the ACCA erred when it remanded the case for a sentence rehearing, because it lacks the authority to do so. App. Br. at 17-18. Finally, even if the ACCA had the authority to remand the case for a sentence rehearing, the record is still incomplete, there is still a presumption of prejudice, and there is still a need for relief. App. Br. at 21-22.

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CAAF will hear oral argument in United States v. Lubich, No. 12-0555/NA, on Tuesday, February 19, 2013. The court granted review of the following issue:

Whether the military judge erred by overruling defense counsel’s foundation and authentication objections and admitting computerized data evidence gathered by an unnamed Navy-Marine Corps Intranet (NMCI) analyst who used an unidentified process with unknown reliability to collect data related to appellant’s network user activity.

Lawyers and computers mix surprisingly badly (try running a law blog if you don’t believe me). During the special court-martial trial of ET2 Lubich for impersonating her supervisor (a commissioned officer) and submitting fraudulent documents while applying for a $10,000 loan in his name, records of internet activity from her Navy-Marine Corps Intranet (NMCI) account were introduced through a Naval Criminal Investigative Service (NCIS) cyber forensics examiner. The NCIS examiner testified that he prepared two reports from six CDs of data provided to him by an unidentified NMCI analyst. No evidence was introduced to describe how the NMCI analyst gathered the data, to confirm its accuracy, or even to explain how it could logically be tied to the Appellant.

The trial defense counsel objected to the introduction of the NCIS examiner’s reports on foundation and confrontation grounds (though apparently did not make a specific hearsay objection. Additionally, I don’t see any evidence in the briefs or the CCA’s opinion that the NCIS examiner’s testified as an expert witness in an associated field.). The trial military judge denied the defense objections, and admitted the NCIS examiner’s reports as Prosecution Exhibits 19 and 23, ruling:

I believe that argument goes more to the weight of the evidence, and you certainly can explore that in cross-examination. The objection is overruled. I find that both Prosecution Exhibits 19 and 23 for identification have been sufficiently authenticated and that the Confrontation Clause is not implicated because we are dealing with an automated process, no conclusions in these documents themselves and, again, it’s an automated process with very little discretion involved on the part of the person that was obtaining the data.

United States v. Lubich, No. 201100378, slip op. at 3 (N-M.Ct.Crim.App. April 19, 2012) (unpublished) (per curiam). The two reports were admitted, the Trial Counsel made extensive reference to their contents during argument, and ET2 Lubich was convicted by a panel of members with enlisted representation of one specification of violation of Article 80 and two specifications of violation of Article 134, and sentenced to confinement for 45 days, forfeiture of $1,300 pay per month for two months, reduction to pay grade E-3, and a bad-conduct discharge.

The NMCCA reviewed the case and considered the admissibility of the NCIS examiner’s reports on confrontation, hearsay, and authentication grounds. Addressing hearsay and confrontation, the CCA found that because the reports were generated by machines, and because machines are not declarants, the reports are neither hearsay nor testimonial. Lubich, No. 201100378, slip op. at 4 (citing United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (“machines are not declarants”)). Addressing authentication, the CCA found that, “A review of PE 19 and PE 23 unequivocally establishes that those two exhibits are exactly what the trial counsel claimed them to be: an exhaustive, detailed history of the appellant’s online activities from her NMCI account.” Id. slip op. at 5. The CCA affirmed the findings and sentence, and CAAF granted review to consider the foundation/authentication objection (and presumably denied a request to review the confrontation/hearsay issue).

Because CAAF didn’t grant review of the confrontation/hearsay issue, I won’t discuss it further in this post. But I’ve long thought that the courts have the whole “machine-generated” bit wrong. Machines don’t generate anything without human instruction (the software) and direction (the input). At least, not yet they don’t.

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The last scheduled oral argument at CAAF in January is in United States v. Castellano, No. 12-0684/MC, on the following granted issue:

In Miller v. California, the Supreme Court held that the trier of fact must determine whether judicially-created factors that distinguish between constitutionally-protected and criminal conduct are satisfied. The factors identified in United States v. Marcum are an example of such factors but the lower court held that the military judge must determine whether the Marcum factors are satisfied. Who determines whether they have been satisfied?

Lance Corporal Castellano was originally charged with unspecified sexual assaults and forcible sodomy involving multiple alleged victims. However, he was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of the unspecified sexual assault charges), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

However, in June, 2012, the NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

Specifically, this Appellant argued before the NMCCA that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)) and as it has again since (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012).

And the NMCCA is not alone: The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”). Moreover, the Marcum factors appear in another case this term: United States v. Goings, No. 11-0547/AF. In that case, CAAF is asked to apply the Marcum factors to a conviction of indecent acts in violation of Article 134 (though that case was tried by a military judge alone, limiting the analytical similarities between it and Castellano).

All these factors mean that CAAF’s decision to grant review of this issue make this case one to watch closely. And the Appellant’s brief opens with some strong language:

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CAAF will hear oral argument in the case of United States v. Mott, No. 12-0604/NA, on Wednesday, January 23, 2013. The court granted review of the following issues:

I. A lack of mental responsibility defense exists when a mentally diseased accused cannot appreciate the wrongfulness of his conduct. Here, experts testified that appellant’s paranoid schizophrenia and severe delusions created his subjective belief that stabbing the victim was justified. But the military judge and NMCCA adopted an objective standard for “wrongfulness.” What is the appropriate standard in determining whether an accused can appreciate the wrongfulness of his conduct?

II. Under the Fifth Amendment, an accused’s statement to investigators is admissible only if it was obtained with a voluntary, knowing, and intelligent waiver where the accused understands his rights and the consequences of waiving them. Here, expert witnesses testified that appellant could not understand his rights or the consequences of waiving them because of his severe mental disease. Did the military judge err by admitting the statement?

This case arose out of a stabbing that occurred aboard USS Cape St George in 2007. The Appellant believed that the victim (a fellow sailor he had never seen before) had participated in a gang rape of the Appellant in 2003. The Appellant was suffering from paranoid delusions at the time of the stabbing, and he was later diagnosed as a paranoid schizophrenic (and was initially declared incompetent to stand trial, followed by eight months of treatment at the Prison Mental Health Facility at Butner, North Carolina). He was eventually tried and convicted, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder, in violation of Article 80, UCMJ. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

However, the findings and sentence were set-aside by the NMCCA in 2009 due to a Behenna-esqe discovery violation. Specifically, the Government expert “verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. . . . We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. [H], was error.” United States v. Mott, No. 200900115, slip op. at 5 (N-M.Ct.Crim.App. Nov 24, 2009) (unpublished) (Mott I).

The Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, in violation of Article 80, UCMJ. He was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April, 2012.

During the retrial, the Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. At the NMCCA, he argued that his conviction was legally and factually insufficient because he was unable to appreciate the wrongfulness of his actions. The CCA began its analysis by “not[ing] that the Court of Appeals for the Armed Forces has not defined the phrase ‘appreciate the wrongfulness’ in its existing case law.” United States v. Mott, No. 200900115, slip op. at 10 (N-M.Ct.Crim.App. Apr 30, 2012) (unpublished) (Mott II). It then considered the three possible definitions recognized in federal caselaw:

(1) legal wrongfulness, as in “contrary to law”;
(2) moral wrongfulness, as in “contrary to public morality,” determined objectively by reference to society’s condemnation of the act as morally wrong; or
(3) moral wrongfulness, as in “contrary to personal morality,” determined subjectively by reference to the defendant’s belief that his action was morally justified

Mott II, slip op. at 10 (quoting United States v. Ewing, 494 F.3d 607, 616 (7th Cir. 2007)). The Appellant asked the court to adopt the third definition (subjective belief of wrongfulness), but the court “agree[d] with the Seventh Circuit’s well-reasoned analysis in Ewing and . . . conclude[d] that the phrase ‘appreciate the wrongfulness’ must employ an objective societal standard of moral wrongfulness.” Mott II, slip op. at 10. This action (and the trial military judge’s similar adoption of the objective test in his instructions to the members) is the subject of the first granted issue before CAAF.

Additionally, in a pretrial motion, the Appellant sought to suppress a confession he made to NCIS shortly after the stabbing, on the basis that his waiver of his right against self-incrimination was not knowing and intelligent based on the opinion of a “a forensic psychiatrist, who opined that the appellant’s diagnosed paranoid schizophrenia prevented him from understanding the consequences of the waiver.” Mott II, slip op. at 3. The trial judge denied the motion, and the NMCCA affirmed based on the totality of the circumstances. This action is the subject of the second granted issue.

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CAAF will hear oral argument in United States v. Riley, No. 11-0675/AR, on Tuesday, January 22, 2013. CAAF granted review of the following issues:

I. Whether appellant received ineffective assistance of counsel when her defense counsel failed to inform her that she would have to register as a sex offender after pleading guilty.

II. Whether, in light of United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), there is a substantial basis to question appellant’s guilty plea due to the military judge’s failure to inquire if trial defense counsel informed appellant that the offense to which she pleaded guilty would require appellant to register as a sex offender.

Last term, in United States v. Rose, CAAF avoided the specific question of whether it is deficient performance, meeting the first prong under Strickland v. Washington, 466 U.U. 668 (1984), for ineffective assistance of counsel, for a defense counsel to fail to advise his client about the collateral consequence of sex offender registration in the context of a guilty plea. Now CAAF appears ready to take another bite of this apple with Riley, a case with somewhat unusual facts that make it a good candidate for the question presented in the first issue.

The Appellant in Riley was convicted, in accordance with her plea pursuant to a pretrial agreement, of kidnapping in violation of Article 134. A panel of officers sentenced her to a dishonorable discharge, confinement for five years, and total forfeitures. The sentence was approved as adjudged (the PTA protected against confinement in excess of 11 years). In July, 2011, the ACCA summarily affirmed the sentence. But in November, 2011, CAAF remanded the case for consideration of new issues raised by the Appellant, and ordered the ACCA to obtain affidavits from the trial defense counsel regarding allegations of ineffective assistance of counsel. In May, 2012, the ACCA again affirmed, this time in a memorandum opinion. Then, in October, CAAF granted review.

The facts are neatly summarized in the ACCA’s memorandum opinion:

While on involuntary excess leave following a previous court-martial conviction for failing to report, false official statement, and malingering, appellant dressed in medical scrubs and entered the baby ward of Darnall Army Medical Center on Fort Hood, Texas. Appellant then entered the maternity room of a new mother and baby, and pretended to be an attending nurse. When the mother left to use the bathroom, appellant took the baby out of the room and into the hallway. After the mother returned and noticed her baby missing, she also went out of her room into the hallway. At this time appellant was placing the baby in a backpack and when the mother saw her, she told appellant to stop. Appellant responded that the baby needed to be fed and gave the baby back to the mother and left the area. Five days later, appellant was apprehended by law enforcement agents and admitted to kidnapping the baby from the hospital room.

While serving confinement after pleading guilty at her court-martial for kidnapping, appellant claims that she was informed for the first time that she would have to register as a sex offender for the kidnapping offense. Affidavits provided by appellant’s two defense counsel confirm that they did not inform appellant she would have to register as a sex offender for the kidnapping offense. Moreover, the record of trial confirms that the issue of sex offender registration was not addressed during appellant’s court-martial.

United States v. Riley, No. 20100084, slip op. at 2 (A.Ct.Crim.App. May 11, 2012). The ACCA explained that the sex offender registration was a consequences of Department of Defense Instruction 1325.7, Encl. 27, which lists offenses that require federal sex offender notification to state and local authorities, kidnapping being among them. Of the two Strickland prongs for IAC (deficient performance and prejudice; both must be shown for the Appellant to prevail), the ACCA did not address the question of deficiency because it found that there was no prejudice, due to “the strength of the government’s case, including the overwhelming weight of evidence against appellant, and the favorable sentence limitation in the pretrial agreement.” Riley, slip op. at 3. The court also considered whether it was error for the military judge to accept the Appellant’s plea without asking about sex offender registration, but found that the misunderstanding was not made readily apparent to the judge, noting that “chief reliance must be placed on defense counsel to inform an accused about the collateral consequences.” Riley, slip op. at 4 (quoting United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982)).

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CAAF returns from its winter break from oral arguments next week, beginning at 9:30am on Tuesday, January 22, 2013, with oral argument in United States v. Holsey, No. 12-0597/AR. The court granted review of one issue:

Whether the military judge abused his discretion when he rejected Appellant’s plea based upon a necessity defense that is neither recognized in military courts nor applicable to Appellant’s case.

Cue up Yakety Sax. On the eve of his trial by court-martial (for charges otherwise unrelated to this case) in January, 2007, Private First Class Holsey, U.S. Army, absented himself from Fort Eustis, VA, and drove to Miami, FL, where he remained until he was arrested two and a half years later. He was then charged with desertion with intent to remain away permanently in violation of Article 85 (it’s not clear what happened to the other set of charges).

Then, before a military judge sitting as a special court-martial in June, 2010, he entered a naked (i.e., without a pretrial agreement) plea of guilty to the lesser-included offense of unauthorized absence. But the military judge rejected his plea after PVT Holsey said that he had called his unit prior to returning, but did not return at that time because he had custody of his children and no place to take them, and the military judge indicated that this might be a defense of necessity, to which the Appellant agreed. The case then proceeded immediately to trial, where the Government called few witnesses, the Defense seemingly failed to make a number of objections or request a continuance to prepare its case, and the military judge found PVT Holsey guilty of desertion, and then sentenced him to reduction to E-1, confinement for 11 months, forfeitures for 11 months, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged, the ACCA summarily affirmed, CAAF granted review to determine if it was error for the military judge to reject PVT Holsey’s plea to the LIO, and then…

The Government agrees that the defense of necessity is not directly recognized in military law and that the military judge abused his discretion in rejecting the plea.

Gov’t Br. at 8. But, “[d]espite the military judge’s error, appellant was not prejudiced as the error did not have substantial influence on the findings.” Id. Of course, the Government can’t concede everything. If they did, we’d have nothing to write about.

The Government’s brief first emphasizes the concession, by arguing that a defense of necessity, while never explicitly rejected or recognized by CAAF, shouldn’t exist in the military (because “[t]he armed forces cannot afford to allow service members the discretion to act in their own best interest at the expense of their unit” (Gov’t Br. at 11-12)), and then by arguing that even if such a defense does exist, “the military judge failed to conduct an adequate factual inquiry to see if such a defense existed [in this case].” Gov’t Br. at 12. But then the brief turns to prejudice, and the Government argues that “appellant arguably benefited from the military judge’s error as not only was the government forced to establish all the elements of the offense, but the defense was able also to simultaneously present appellant’s willingness to admit guilt as a source of mitigation.” Gov’t Br. 15.

This concession moots a large part of the Appellant’s brief, but a reply brief gives some more insight into the trial: “The opportunity to repent [during sentencing] is not a substitution for adequate preparation and offering of a substantive defense to a contested charge.” Reply. Br. at 2. This implies that the Appellant’s trial defense counsel wasn’t prepared for trial, but there was no objection to proceeding immediately after the military judge rejected the guilty plea, nor was there a request for a continuance. Moreover, it’s hard to accept the Appellant’s invocation of the possibility of a “substantive defense,” when both sides agree that the military judge was wrong to reject the guilty plea (meaning that both sides agree that it wasn’t a substantive defense).

What’s not particularly clear from the briefs is the Government’s plan for this trial absent the military judge’s rejection of the plea. My gut tells me that the Government was not going to proceed on the greater offense once it secured the Appellant’s plea to the LIO. Assuming that’s true (a big assumption), then the prejudice seems pretty plain. But the briefs give the impression that there’s just no record of what could have been, and that’s going to count against the Appellant.

This case certainly looks like an unlikely vehicle for CAAF to explore the availability of a defense of necessity under the UCMJ, and there’s not much of a conflict left on the question of whether the military judge erred in rejecting the plea. That leaves only prejudice, and I think it’s a longshot for the Appellant.

Case Links:
• ACCA opinion (summary affirmation)
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

The last oral argument on Monday, December 3, 2012, is also the last scheduled argument of this calendar year: United States v. Tunstall, No. 12-0516/AF. The case is an interesting way to end the calendar year because when CAAF granted review in August, it ordered the parties to file briefs on both issues:

I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.

II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.

It’s rare that the court orders briefs on a terminal-elements issue since the decisions in Fosler, Ballan, and Humphries. The problem with the adultery specification in this case, which was tried in 2009 (before CAAF decided Fosler), is that it lacked a terminal element (like in Fosler), and the Defense did not object at trial (like in Humphries). CAAF granted relief in both Fosler and Humphries, though in Humphries the court rejected the blanket rule that dismissal is required in these circumstances, and instead tested for plain error. But here the Appellant asks CAAF to “revisit its prejudice analysis in Humphries and instead follow Rule for Courts-Martial 907(b)(1)’s plain language that a ‘specification shall be dismissed at any stage of the proceedings if’ it ‘fails to state an offense.’” Appellant’s  Br. at 11 (emphasis added).

The Appellant makes two arguments for dismissal of the adultery specification in this case. The first is application of the plain-error test; that he was prejudiced because:

there was nothing during its case-in-chief that reasonably placed [the accused] on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated. That element was controverted. As the Supreme Court has stated, “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged[.]” Appellant pleaded not guilty to the adultery specifications, thereby controverting all of the specification’s elements. At no time thereafter did the defense enter any stipulations, make any concessions, or take any other action to uncontrovert the adultery specification’s terminal element.

Appellant’s Br. at 24 (marks and citations omitted). When Humphries was decided, I was hostile to the notion that by sitting on your hands you can possibly preserve the issue of surprise for appeal (as opposed to, say, objecting to the surprise, or even just repeating “wait, what” until the judge takes notice), and I still think this is bad logic. Article 134 is hardly a complex statute, and the concept that mere adultery is not criminal, but adultery coupled with prejudice/discredit is criminal, is pretty basic stuff that counsel are presumed to know. I believe that if a defense counsel didn’t know this, but suddenly realizes it during the trial, he has an obligation to bring it to the court’s attention sometime before appellate division gets the case.

But the Appellant’s brief makes the alternative argument “that Humphries’ prejudice analysis approach is inconsistent with a presidentially prescribed rule in the Manual for Courts-Martial. Under that rule, dismissal is the required remedy for the adultery specification’s failure to state an offense.” Appellant’s Br. at 28. This argument is based on the premise that CAAF must obey the rules for courts-martial established by the President, and that “[t]he President is free to revise that rule if he no longer wishes to mandate dismissal of the specification as the sole remedy for failure to state an offense. But unless and until the President modifies R.C.M. 907(b)(1), it is this Court’s duty to enforce it as written.” Appellant’s Br. at 30. Were CAAF to adopt this reasoning, it would be a dramatic reversal from the court’s decision in Humphries issued just a few months ago. I think it unlikely that CAAF will reverse itself so soon, particularly since Senior Judge Effron (who was in the Humphries (3-2) majority) will return for this case.

But, the Government’s brief highlights a different way CAAF might take its terminal element jurisdiction in a new direction: by changing how it applies the plain-error test. The oral argument in this case will occur immediately after the oral argument in United States v. Clifton, No. 12-0486/AR, and in my argument preview for Clifton I theorized that Clifton “is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error.” The court’s decision to order briefs on the terminal element issue in this case, and to schedule these two cases together, adds weight to that theory. So does the Government’s framing of the issue, which includes a lengthy footnote on page 13 that discusses the full, four-prong test for plain error. Reading the tea-leaves, I see a change that a CAAF majority is ready to adopt the full plain-error test by (1) finding error that is (2) plain and obvious and (3) materially prejudiced a substantial right of the Appellant (just like in Humphries), but still decline to grant relief because (4) the error [does not] seriously affect the fairness, integrity or public reputation of judicial proceedings.

However, the Government’s brief also emphasizes the prejudice prong of the plain-error test, arguing that “[t]hroughout the government’s case-in-chief, trial defense counsel cross examined several of the government’s witnesses on issues related to the terminal element of adultery. . . . By asking these questions, trial defense counsel elicited evidence he was able to later argue about in closing argument in an effort to acquit Appellant of this specification.” Gov’t Br. at 16. A footnote adds:

In fact, trial defense counsel identified this terminal element as “the most important element” and then read it verbatim to the members from the military judge’s instructions.

Gov’t Br. at 16, N.4.  The Government’s brief also highlights the fact that the Defense introduced evidence of the Appellant’s impending divorce, and that “trial defense counsel argued that this application for dissolution of the marriage was evidence ‘going against’ this third element.” Gov’t Br. at 17-18. This sure seems to undercut the Appellant’s argument of surprise, meaning that even if the court wants to get to the fourth-prong of the plain-error test, this case might not make it that far.

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In The Hazard of Humphries, I wrote extensively about CAAF’s decade-and-a-half-long struggle to adopt the Supreme Court’s test for plain error, which is error that may be remedied on appeal despite being forfeited by the failure to make a timely objection at trial (as opposed to an error that is preserved by a timely objection, or error that is waived by an intentional relinquishment at trial).

On Monday, December 3, 2012, after CAAF hears oral argument in United States v. Bowersox, No. 12-0398/AR, the court will hear oral argument in United States v. Clifton, No. 12-0486/AR. At first glance, Clifton looks like a case about when it is error for a military judge to deny a court-martial member’s request to call additional witnesses. However, I believe that this case is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error:

First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Puckett v. United States, 556 U.S. 129, 135, (2009) (marks and citations omitted). See also United States v. Humphries, 71 M.J. 219, 220 (C.A.A.F. 2012) (Stucky, J. dissenting) (“There are four elements to the Supreme Court’s plain error doctrine.”).

In 2009, Specialist Clifton was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas, of making a false official statement and aggravated assault, in violation of Articles 107 and 128, UCMJ. He was sentenced to confinement for six months and a bad-conduct discharge. His convictions were for actions leading to injuries sustained by his infant daughter, and at trial his defense was that the injuries were really caused by his wife.

After closing arguments, one of the enlisted members asked to recall two witnesses: a medical provider and the Appellant’s wife. The request to recall a medical provider was disapproved because the military judge found that all of the testifying medical providers had “been permanently excused,” and the request to call the Appellant’s wife was disapproved because the judge found that “we have closed all of the evidence.” Trial and Defense Counsel were asked if they had any objections to these denials, and both stated that they had none.

The Army CCA reviewed the court-martial, and considered an assignment of error relating to the military judge’s denial of the member’s request. The CCA found that “the absence of a defense objection to the military judge’s actions does not equate to waiver.” Slip op. at 3. The court then considered the error, and found that the military judge abused his discretion in denying the member’s request based on a lack of evidence in the record that the judge considered the four factors required by United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982) (difficulty and delay; materiality; possibility of a claim of privilege; and, objections of the parties).

However, the court found that the error did not prejudice the Appellant (and likely benefited him, considering the strength of the Government’s case), noting:

Under Article 59(a), UCMJ, in order to grant relief, the military judge’s error must have materially prejudiced appellant’s substantial rights. Because the error is a nonconstitutional one, the government must demonstrate “the error did not have a substantial influence on the findings.” Rios, 64 M.J. at 569 (quoting United States v. Berry, 61 M.J. 91, 97 (C.A.A.F. 2005) (additional citations omitted)).

Slip op. at 3 (emphasis added). But Berry was a case with preserved error (i.e., the defense objected to the testimony of a Government witness), and Rios was a case, like Clifton, with either a forfeited or waived error, because the defense did not object to the military judge’s denial of a member’s request. In other words, the ACCA has the plain-error test wrong, and had it wrong in Rios too.

I see this as the real question in this case: Was the military judge’s error (assuming it was error) in denying the member’s request: preserved (no), forfeited (maybe), or waived (I think so), when the trial defense counsel said he had no objection to the military judge’s action? And, if it was forfeited, should an appellate court grant relief?

CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred when it determined the military judge committed error by denying a panel member’s request to call two additional witnesses for questioning, but found this error to be harmless.

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On Monday, December 3, 2012, at 9:00, CAAF will hear oral argument in United States v. Bowersox, No. 12-0398/AR, which presents the following issue:

Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of a military judge alone, of two specifications of possessing obscene visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 1466A(b)(1) (2006) and which conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. In accordance with his pleas, he was acquitted of one specification of possession of child pornography. He was sentenced to a bad-conduct discharge, confinement for four months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

The visual depictions at issue were a “particular kind of anime” consisting of “computer generated images of children engaged in various sexually explicit acts.” Gov’t Br. at 3. The CCA affirmed the Appellant’s convictions in a published opinion (United States v. Bowersox, 71 M.J. 561 (A.Ct.Crim.App. 2012)), noting that: “There is no constitutionally recognized right to possess such material, under these circumstances, on property within the special maritime and territorial jurisdiction of the United States and no authority to extend Stanley into this province. The threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home.” Bowersox, 71 M.J. at 564 (marks omitted) (emphasis added).

The Appellant’s brief uses five-and-a-half pages to discuss the 4th Circuit’s opinion in United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), cert. denied, 130 S.Ct. 1052 (2010). In Whorley, the court “reject[ed] [Whorley's] arguments that . . . cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate § 1466A(a)(1).” Whorley, 550 F.3d at 330. But Whorley involved a violation of § 1466A(a)(1), and the Appellant in Bowersox was convicted of violating Article 134 by possessing images in violation of § 1466A(b)(1). The differences between these statutes is slight, the court decided Whorley in a way that works against the Appellant in Bowersox, and I had trouble following the Appellant’s analysis (which focuses on the dissenting opinion in Whorley).

The Appellant’s brief also discusses the holding in United States v. Stanley, 394 U.S. 557, 559 (1969), that “the mere private possession of obscene matter cannot constitutionally be made a crime.” The Appellant argues that this makes § 1466A(b)(1) “unconstitutional as applied to [A]ppellant.” Appellant’s Br. at 12. The brief also emphasizes that the obscene material was found in Appellant’s password-protected computer, and not in plain view or other physical form within his barracks room. Appellant’s Br. at 13. Finally, citing United States v. Wilcox, 62 M.J. 442, 448-449 (C.A.A.F. 2008), the Appellant’s brief argues that because there is a First Amendment right to possess obscene materials, the Government was required (but failed) to show that there was a “direct and palpable connection between [the] speech and the military mission or military environment” in order to establish the service discrediting nature needed to constitute a violation of Article 134. Appellant’s Br. at 15-16.

The Government’s response begins with this whopper: “Section 1466A(b) (1) is constitutional as applied because (1) it only applies to unprotected obscenity; and (2) appellant’s shared barracks room on federal land is not a home.” Gov’t Br. at 1 (emphasis added). Lance Corporals keep telling me that the barracks isn’t home; now we know that the Government agrees. Because the Government contends that a barracks room is not a home, is concludes that the possession of obscene material under the circumstances of this case is not constitutionally protected. Gov’t Br. at 13. Thus, the Government advises CAAF:

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“On January 22, 2010, alone in his barracks room at Camp Schwab, Okinawa, Lazzaric T. Caldwell, a 23-year-old Marine Corps private, slit both his wrists with a razor blade in an effort to take his own life.” Appellant’s Br. at 4. In June of 2010 he was convicted, pursuant to his pleas, of orders violations, larceny, and wrongful self-injury, in violation of Articles 92, 121, and 134, UCMJ, and contrary to his pleas of a separate order violation for wrongfully possession of “spice.” He was sentenced to confinement for 180 days and a bad-conduct discharge.

The NMCCA reviewed these convictions twice. In the first review, a panel of three judges set-aside the findings of guilty of larceny and self-injury, but affirmed the sentence. The CCA then reviewed the case en banc, and affirmed all of the trial findings and the sentence in a published opinion that included this analysis:

As to the public policy argument, we are not persuaded that criminal prosecution of genuine suicide attempts should be prohibited under military law. As both parties note in their briefs, self-injury has long been a chargeable offense in military jurisprudence. We consider the analyses provided by the Court of Military Appeals in United States v. Ramsey, 40 M.J. 71, 75 (C.M.A 1994), and in United States v. Taylor, 38 C.M.R. 393, 395 (C.M.A. 1968) dispositive on the matter.

The decision to prosecute what could be viewed as a bona fide suicide attempt is a matter left to the convening authority’s unfettered discretion. Conceivably, some instances of self-injury or malingering could be concealed in the guise of a sincere suicide attempt. If a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.

United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011) (emphasis added). In Taylor (which did not involve a suicide attempt) the Court of Military Appeals rejected the contention that Congress intended malingering in violation of Article 115 to encompass all self-injury offenses under the UCMJ . In Ramsey, citing its opinion in Taylor, that court explicitly addressed attempted suicide, and determined:

Appellant’s attempted suicide was not the substantive crime he faced; rather, his attempt to kill himself was the basis for his crime of self-inflicting an injury to the prejudice of good order and discipline. If attempted suicide for the purpose to avoid military duty may be a sufficient basis for a charge of malingering, see United States v. Johnson, 26 MJ 415 (CMA 1988), then attempted suicide without such purpose surely may be a sufficient basis for a charge of intentional self-infliction of injury to the prejudice of good order and discipline.

Ramsey, 40 M.J. at 75. The NMCCA issued its en banc opinion on December 27, 2011. The next month the Appellant asked the Judge Advocate General to certify the case to CAAF, but that request was denied. The Appellant then petitioned the court for review, which was granted on July 11, 2012, for the following issue:

Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.

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