CAAFlog » Argument Previews

CAAF will hear the final oral argument of the October 2016 term in the Marine Corps case of United States v. Chikaka, No. 16-0586/MC (CAAFlog case page), on Tuesday, May 23, 2017, at 9:30 a.m. The court granted review of two issues, but only the first issue will get the court’s attention (as the second was resolved in favor of the Government in McClour):

I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?

II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Staff Sergeant (E-6) Chikaka was convicted contrary to his pleas of not guilty, by a general composed of members with enlisted representation, of attempted abusive sexual contact (as a lesser-included offense of abusive sexual contact), wrongful sexual contact, abusive sexual contact, nine specifications of violating general orders, four specifications of obstructing justice, one specification of indecent language, and one specification of adultery. The adjudged and initially-approved sentence was confinement for 12 years, reduction to E-1, total forfeitures, and a dishonorable discharge. A second convening authority’s action (after the Navy-Marine Corps CCA found error in the post-trial processing) reduced the confinement to 10 years. The CCA further reduced the sentence to confinement to five years.

Chikaka’s convictions arose from his improper relationships with prospective Marine Corps applicants while serving as a recruiter in Douglasville, Georgia, in 2012. But CAAF’s review will focus on something else that happened that year: a presentation given multiple times by then-Commandant of the Marine Corps General James Amos known as the Heritage Brief.

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CAAF will hear oral argument in the Navy case of United States v. Darnall, No. 16-0729/NA (CAAFlog case page), on Wednesday, May 10, 2017, after the argument in Tucker. A single issue challenges the admission of evidence discovered after an apprehension of dubious legitimacy:

Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement; twelve specifications of importing, possessing with the intent to distribute, distributing, and manufacturing controlled substances; four specifications of possessing, distributing, and importing controlled substance analogues; and seven specifications of using a communication facility in furtherance of a conspiracy in violation of Articles 81, 107, 112a, and 134. He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.

The case began:

Sometime in November 2011, [when] a package containing white powder entered the United States via airmail from China through San Francisco International Airport. The powder was subsequently identified as dimethylone, which could be classified as a controlled substance analogue, but only if meant for human consumption. The box was addressed to a “Brandon Darnall”at “5985 Mariposa Ave, 29 Palms, CA 92277, USA. . .”

App. Br. at 4. Dimethylone is “street named ‘bath salts,'” Gov’t Div. Br. at 3 (quoting record), and has no known use other than for human consumption by idiots.

From the address on the package federal law enforcement suspected that the intended recipient was in the military. But Darnall “never lived at 5985 Mariposa Ave., which is an off-base residence. Instead, he lived on base.” App. Br. at 5. Nevertheless, military law enforcement agents arranged to have a substitute package delivered to Darnall’s unit’s mailroom and for Darnall to be instructed to pick it up. That happened and Darnall was apprehended.

After Darnall was apprehended he was read and waived his rights. Then he confessed to basically everything. A subsequent search of his cell phone (authorized by his commander) revealed additional evidence. Darnall was released, but he returned the next day to give another confession that reviewed everything from the first confession and provided additional details.

But Darnall asserts that the agents lacked probable cause to apprehend him and so all of this evidence should have been suppressed. The NMCCA rejected this argument, finding that the agents did have probable cause. Now CAAF will decide.

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CAAF will hear oral argument in the Army case of United States v. Tucker, No. 17-0160/AR (CAAFlog case page), on Wednesday, May 10, 2017, at 9:30 a.m. The court will examine the mens rea required to violate Article 134, reviewing a published decision of the Army CCA that found that the statutory term disorders and neglects establishes a negligence standard, with the following issue:

Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.

Private (E-1) Tucker pleaded guilty to numerous offenses at a general court-martial composed of a military judge alone. The offenses included two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing him on the concept of negligence:

which [the military judge] defined as “the lack of that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances.” The military judge asked Private Tucker if he was “negligent” in that he “didn’t ask [Private TMG] her age or try to verify her age before serving her?” Private Tucker replied “Yes, sir.”

App. Br. at 3-4 (citations to record omitted).

In its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Where a statute does not state a required mental state (a mens rea), and such an omission is not deliberate legislative choice, courts will infer such a requirement and such inference will generally require that an accused have acted at least recklessly.

On appeal Tucker challenged his plea that was based on negligence, asserting that Article 134 has no mens rea element and so his conduct must have been at least reckless. The Army CCA, however, disagreed, holding that Article 134 provides a clear negligence standard:

However, Article 134, UCMJ, is not silent, for it specifically criminalizes “disorders and neglects” that are prejudicial to good order and discipline, or which tend to discredit the service. UCMJ art. 134. For those offenses where the crime clearly states a negligence standard, Elonis is inapplicable.

United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016) (link to slip op.).

CAAF then granted review.

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CAAF will hear oral argument in the certified Air Force case of United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page), on Tuesday, May 9, 2017, after the argument in Claxton. The case involves one certified issue and five granted issues (but three of the granted issues are Ortiz trailer issues). The issues arise from convictions of child endangerment and committing indecent acts with a child, both in violation of Article 134, that were reversed on appeal by the Air Force CCA because the specifications didn’t allege a terminal element, then re-preferred, re-referred, and re-tried, but then reversed again by the CCA (and dismissed with prejudice) in a split decision (discussed here) that found that the CCA’s first reversal did not authorize the second trial:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.

Granted Issues:
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?

II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification

III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.

V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). Because there was no objection at trial, the Air Force CCA applied CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page). Nevertheless, the CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed.

The case was remanded and new charges were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charges should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge – analysis that I found (and still find) to be persuasive.

CAAF will now review that decision and also determine whether the statute of limitations prohibited the second trial and whether delays in the CCA’s review deprived Carter of his right to speedy appellate review.

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CAAF will hear oral argument in the Air Force case of United States v. Claxton, No. 17-0148/AF (CAAFlog case page), on Tuesday, May 9, 2017, at 9:30 a.m. The case is a Hills trailer and also involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error in both issues, but it concluded that both errors were harmless beyond a reasonable doubt. CAAF then granted review of two issues challenging both findings of harmlessness:

I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

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CAAF will hear oral argument in the Marine Corps case of United States v. Forrester, No. 17-0049/MC (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Brantley. The case is the most direct review of the concept of unreasonable multiplication of charges since CAAF’s decision in United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (CAAFlog case page) (clarifying the difference between multiplicity and unreasonable multiplication of charges, and recognizing that charges may be unreasonably multiplied for sentencing alone).

Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.

The eleven total specifications were charged as just seven specifications, but the military judge split four of those specifications into two each (apparently to avoid specifications that alleged conduct both before and after the effective date of Executive Order 13593). Then, “after findings, the judge merged two of the specifications back into the original two, resulting in convictions for a total of four specifications.” App. Br. at 2. Those four convictions all involved possession of the same 23 images of child pornography on four separate devices: three computer drives and an email account. Forrester asserts that his four convictions for possession of the same contraband images on four different mediums constitutes an unreasonable multiplication of charges.

The NMCCA rejected Forrester’s unreasonable multiplication claim, concluding that “the government was able to prove that the appellant took separate steps on separate dates to copy the initial 23 images to the other media devices—and thus completed the necessary actus reus each time he re-copied the images.” United States v. Forrester, No. 201500295, slip op. at 4 (N.M. Ct. Crim. App. Aug. 30, 2016) (per curiam). CAAF then granted review of a single issue:

Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

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CAAF will hear oral argument in the Army case of United States v. Brantley, No.17-0055/AR (CAAFlog case page), on Tuesday, April 25, 2017, after the argument in Ramos. A single issue questions the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment:

Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.

Private First Class (E-3) Brantley was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) by touching the alleged victim’s breasts while she was otherwise unaware. The panel sentenced Brantley to confinement for 90-days, reduction to E-1, and a bad-conduct discharge. The convening authority approved the findings and sentence and the Army CCA summarily affirmed.

Brantley’s conviction was of a statute that prohibits sexual touching of “another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring.” Article 120(b)(2). In United States v. Sager, __ M.J. __ (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), CAAF concluded that the statute’s enumeration of “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted, and the court reversed a decision by the NMCCA that had held the language creates only a single theory of criminal liability based upon unawareness (the three enumerations being ways that a person may be unaware).

The prosecution of Brantley doesn’t seem to involve the kind of error committed by the NMCCA in Sager. Rather, Brantley’s brief focuses on the trial counsel’s argument to the members (apparently without objection or correction by the military judge) that Brantley was guilty because the alleged victim was merely impaired (by a combination of alcohol and prescription drugs); a condition that is fundamentally different from being unaware and alone likely too vague to form a basis for criminal liability.

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CAAF will hear oral argument in the Coast Guard case of United States v. Ramos, No. 17-0143/CG (CAAFlog case page), on Tuesday, April 25, 2017, at 9:30 a.m. The court will consider a single issue that questions whether military investigators were required to give an Article 31(b) warning before questioning the appellant about threats to his wife’s recreational marijuana business activities:

Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.

The case arose from an agreement between Ramos’ wife (a civilian) and a third-party (also a civilian) “to start a business for manufacturing marijuana under Washington State’s recreational marijuana law.” App. Br. at 2. Ramos attempted (or maybe not) to distance himself from the venture. However, while Washington State law permits (and regulates) the cultivation, sale, possession (and use) of marijuana, it is still illegal nationwide. See, for example, 21 U.S.C. § 844. It is also prohibited by the Uniform Code of Military Justice. 10 U.S.C. § 912a. Accordingly, the Ramos marijuana business (like all such businesses) was unlawful.

The business failed. This caused a dispute between Ramos’ wife and her business partner. The partner threatened Ramos’ wife and also “contacted the Coast Guard Investigative Service [(CGIS)] to report that [Ramos] was involved in the marijuana business.” App. Br. at 3-4. Ramos separately informed his command about his wife’s activities and the threats, leading to Ramos being interviewed by the CGIS. Ramos made statements during that interview that were admitted against him during his court-martial. However, despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview.

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CAAF will hear oral argument in the Army case of United States v. Herrmann, No. 16-0599/AR (CAAFlog case page), on Wednesday, April 5, 2017, at 2:00 p.m., at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio. The court will review the legal sufficiency of the appellant’s conviction of reckless endangerment in violation of Article 134 for the pencil packing of parachutes, which is when a parachute is not properly packed or inspected but is fraudulently reported as being properly packed and inspected. It granted review of a single issue:

Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.

The convictions were based on 14 parachutes that were pencil packed. Each of the parachutes had deficiencies deliberately introduced into their packing for training purposes, and Herrmann was the inspector responsible for ensuring that they were properly re-packed prior to being returned to service. The parachutes were, however, reserve type parachutes that would only be used if the jumper’s primary parachute failed somehow. None of the 14 parachutes was ever issued for a jump, nevertheless Herrmann was prosecuted for reckless endangerment based on the possibility of death that could have resulted had any been issued and then failed to work.

At trial Hermann’s defense focused on the speculative nature of any such harm, with his defense counsel arguing in closing that:

Everything they [the prosecutors] have produced is speculative, well, it could happen, but they have not produced any evidence that if those things failed – those deficiencies failed that this is a likely result.

App. Br. at 8. Hermann now takes that argument to CAAF.

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CAAF will hear oral argument in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), on Tuesday, April 4, 2017, at at 12:30 p.m., at the Notre Dame Law School, Notre Dame, Indiana.

The case continues a prosecution appeal under Article 62 of a military judge’s ruling that suppressed the contents of Sergeant (E-5) Mitchell’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to Mitchell decrypting the device for the investigators. The Army Court of Criminal Appeals affirmed the military judge’s suppression ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Mitchell is charged with various offenses at a general court-martial. The bulk of the charges relate to allegations that Mitchell harassed his ex-wife. The search of Mitchell’s phone was based on a claim by his ex-wife that Mitchell contacted her using texting applications after he was issued a no-contact order. Mitchell was interrogated on this topic by military criminal investigators at a military police station where Mitchell invoked his right to counsel. Mitchell was then escorted back to his unit, but investigators immediately obtained a search authorization for the phone and Mitchell was brought to his company commander’s office where the investigators met him. There:

The investigators told Appellee [Mitchell] that they had a verbal search and seizure authorization for his electronic media. (JA 479). Appellee handed his iPhone 6 to the investigators. (JA 480). Investigator BT asked Appellee for his PIN, but Appellee refused to provide it. (JA 480). The military judge found as a fact that the investigators next said, ‘”[I]f you could unlock it, great, if you could help us out. But if you don’t, we’ll wait for a digital forensic expert to unlock it,’ or words to that effect.” (JA 480). Appellee refused to provide his PIN, but unlocked the phone and gave it back to the investigators. (JA 480).

Army App. Gov’t Div. Br. at 5. Mitchell’s brief, however, offers an additional fact:

According to SSG Vaughn, the investigators “badgered [SGT Mitchell]” multiple times until SGT Mitchell provided the passcode or unlocked his phone. (R. at 275).

App. Br. at 5.

The military judge concluded that the continued interrogation and Mitchell’s act of decrypting the phone violated Mitchell’s rights under the Fifth Amendment, and she applied Mil. R. Evid. 305(c)(2) to suppress the phone and its contents. The Army Appellate Government Division challenges that ruling and result with a broadside of complex and interwoven legal arguments that ultimately suggest that a suspect has no right to refuse to produce a decryption passcode. The Air Force Appellate Government Division supports the Army Division as amicus curiae. A pair of law professors also appear as amicus in support of the Government (by invitation of the court).

Mitchell responds to the various arguments advanced by the Government divisions, however his brief ultimately argues that the plain language of Mil. R. Evid. 305(c)(2) dictates the suppression of the phone in his case. That rule states:

(2) Fifth Amendment Right to Counsel. If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.

The Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia support Mitchell as amicus curiae, arguing in part that “compelled decryption is inherently testimonial.” EFF Amicus Br. at 12. A law student (with professorial oversight) also appears as amicus for Mitchell.

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CAAF will hear oral argument in the certified Army case of United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page), on Wednesday, March 15, 2017, after the argument in Richards. A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim.

In his ruling suppressing the images the military judge found that:

“[SA CJP] opened item 18 – the thumb drive – and saw several file names of videos normally associated with child pornography” and “[SA CJP] immediately suspected that these video files were child pornography.” (JA 167) (emphasis added). The military judge did not find SA CJP saw an image preview indicative of child pornography, nor did he find that SA CJP’s suspicion was based on an image preview. (JA 167).

The military judge also found that “[w]ithout seeking or obtaining a new search warrant, [SA CJP] opened one file and viewed it and determined that, based upon his professional experience in such matters, the video was child pornography.” (JA 167).

Appellee’s Br. at 10. The military judge determined that this action exceeded the scope of the warrant and suppressed the resulting images. The Army CCA affirmed. Gurczynski’s brief relies heavily on the military judge’s finding of fact as a basis to affirm the suppression.

The Army Appellate Government Division, however, asserts that the military judge got the facts wrong:

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CAAF will hear oral argument in the Air Force case of United States v. Richards, No. 16-0727/AF (CAAFlog case page), on Wednesday, March 15, 2017, at 1 p.m. The court will hear argument on one issue challenging the validity of a search authorization as overbroad (an Ortiz trailer issue won’t be argued):

I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.

II. Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.

The charges arose after a former participant in a Big Brothers of America program alleged sexual assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship with another minor and involving electronic communications. That evidence supported a search authorization “to conduct a search to obtain ‘all electronic media and power cords for devices cable of transmitting or storing online communications.'” App. Br. at 7. Numerous devices were seized and searched by digital forensic analysis, eventually leading to the discovery of “thousands of images of child pornography.” Gov’t Div. Br. at 8.

At trial Richards moved to suppress the child pornography and derivative evidence “on several grounds, including that the search authorization was overbroad.” Gov’t Div. Br. at 9. The military judge denied the motion, concluding that the authorization was not overbroad and also that the good faith exception would apply even if it were overbroad. Richards renewed this claim at the Air Force CCA, where it was also rejected. He now takes the claim to CAAF to determine:

whether the Fourth Amendment requires a search authorization to include a temporal limitation when that information was available and known to law enforcement at the time the authorization was requested.

App. Br. at 17.

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CAAF will hear oral argument in the Army case of United States v. Hendrix, No. 16-0731/AR (CAAFlog case page), on Tuesday, March 14, 2017, after the argument in Reese. The court will hear oral argument on two issues challenging admission of a voice lineup (three other issues raised Ortiz issues):

I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.

II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.

Specialist (E-4) Hendrix was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual abuse of a child in violation of Article 120b. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

The charge involved an allegation by a ten year old girl that “a tall man came into her room, pulled down her pants and underwear, and touched her . . . [she] also remembered the man saying, ‘Is your sister asleep’ and ‘Promise me you won’t tell anybody.'” App. Br. at 5 (citing record). Hendrix was a friend of the family and was charged. An Article 32 pretrial investigation, however, found no reasonable grounds to believe that Hendrix committed the offense in part because “CID never did a voice lineup to confirm whether [the child] could identify [Hendrix’s] voice.” App. Br. at 5 (quoting record). The prosecution then decided to conduct a voice lineup. But the process they used was less than ideal.

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CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

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CAAF will hear oral argument in the Army case of United States v. Ahern, No. 17-0032/AR (CAAFlog case page), on Wednesday, March 1, 2017, after the oral argument in Erikson. The case presents a challenge to the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2), which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation. In an unpublished decision (previously discussed here) the CCA concluded that the rule is only triggered by an investigation when the accused is actually aware of the investigation. CAAF granted review to determine:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal.

The charges alleged that Ahern sexually abused his step-daughter. After the girl made the allegations, law enforcement directed her to send a pretext text message to Ahern in an effort to elicit an incriminating statement. Ahern did not respond to the message. The defense admitted evidence of this exchange at trial. The girl’s mother also conducted a recorded pretext phone call with Ahern, again in an effort to elicit an incriminating statement. The mother confronted Ahern with the allegation during the call and he did not directly deny it. The prosecution admitted the call into evidence without objection from the defense. Then, in closing argument, the prosecution asserted that Ahern’s failure to deny the allegations in response to the text message and the phone call were evidence of his guilt. The defense did not object to the argument.

The CCA affirmed after concluding that it was not plain error for the prosecution to assert in closing argument that Ahern’s failures to deny the allegations during pretext communications facilitated by law enforcement were admissions by silence.

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