CAAFlog » Argument Previews

CAAF will hear oral argument in the Air Force case of United States v. Mooney, No. 17-0405/AF (CAAFlog case page), on Wednesday, January 10, 2018, after the argument in Carpenter. A single issue questions whether court-martial sentences may run consecutively (one-after-another) with federal sentences:

Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.

Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.

Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.

The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court.

The Air Force CCA approved this action in a published decision, concluding that:

Given the support for this disposition in DoD and Air Force regulatory guidance and the absence of conflicting authorities within the UCMJ, we find the convening authority’s action was sufficient to toll the effective date of confinement under Article 57(b), UCMJ, and thereby require Appellant’s military sentence to confinement be served consecutively with his federal sentence.

United States v. Mooney, 76 M.J. 545, 549-550 (A.F. Ct. Crim. App. Mar. 21, 2017) (discussed here).

The UCMJ, however, does not expressly allow consecutive sentences where a federal civil conviction is followed by a court-martial conviction. But the Code does address all other possible scenarios, permitting consecutive sentences where a court-martial conviction is followed by a civil conviction (Article 14), and where there is a court-martial sentence and one adjudged by a state or foreign court (Article 57a). The Air Force CCA interpreted that silence as a grant of discretion. 76 M.J. at 548.

CAAF granted review to determine if that is correct.

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CAAF will hear oral argument in the Air Force case of United States v. Carpenter, No. 0476/AF (CAAFlog case page), on Wednesday, January 10, 2018, at 9:30 a.m. CAAF granted review of a single issue:

Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.

The briefs are sealed, so there’s not much to preview. But from the Air Force CCA’s opinion (available here) we can see that Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. Carpenter’s defense was that he mistakenly believed the boy was 16.

To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts (soliciting sexual encounters) in which the boy claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Case Links:
AFCCA decision
• Blog post: CAAF grant
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (sealed)
• Blog post: Argument preview

CAAF will hear oral argument in the Army case of United States v. Williams, No. 17-0285/AR (CAAFlog case page), on Tuesday, January 9, 2018, at 9:30 a.m. The case is before CAAF for the second time and – also for the second time – CAAF will consider the impact of the military judge’s instruction that allowed the members to use one charged sexual offense as evidence of Williams’ propensity to commit another charged sexual offense. Such an instruction was found to be both constitutional error and inconsistent with the military rules of evidence in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016).

CAAF will hear argument on a single issue:

Whether the Army Court of Criminal Appeals erroneously found that the propensity instruction given in this case falls within an exception to the holding in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

In 2013, Sergeant (E-5) Williams was convicted of the rape of his first wife (Charge I) and the forcible sodomy of his second wife (Charge II), by a general court-martial composed of members with enlisted representation. Before trial his defense counsel filed a motion to preclude the prosecution from using the charged offenses as evidence of Williams’ propensity to commit the charged offenses. “[T]he military judge did not make a specific ruling on the motion.” Gov’t Div. Br. at 9. However the military judge functionally denied the motion by giving the members a fairly standard (at the time) instruction that allowed them to use Charge I (rape of the first wife) as evidence of Williams’ propensity to commit Charge II (forcible sodomy of the second wife).

The military judge’s instruction had a certain logic because propensity must exist at the time of the offense to be relevant. Put differently, evidence that Williams assaulted his second wife wasn’t relevant to show his propensity to assault his first wife, because the second came after the first. The argument that he did it before so he’ll do it again only works in one direction. By instructing the members that they could use the first allegation to prove the second allegation, but not instructing that the second could prove the first, the military judge merely acknowledged this temporal reality.

Nevertheless, it was error, for all the reasons explained by CAAF in Hills. But the Army CCA determined that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:

Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

Slip op. at 2 (emphasis in original). Next week’s oral argument challenges that determination.

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CAAF will hear oral argument in the Air Force case of United States v. Honea III, No.17-0347/AF (CAAFlog case page), on Wednesday, December 6, 2017, after the argument in Harpole. The court granted review of two issues involving the appellant’s conviction of assault consummated by a battery in violation of Article 128 as a lesser included offense of abusive sexual contact by causing bodily harm in violation of Article 120(h) (2007):

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the government to proceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

Captain (O-3) Honea was charged with numerous offenses. One alleged a sexual touching as abusive sexual contact in violation of the version of Article 120 in effect from 2007-2012. But the military judge determined that the specification failed to state a sexual offense. Instead, the military judge found that the specification stated only the lesser included offense of assault consummated by a battery, and Honea pleaded not guilty to that offense.

The wording of the specification charged Honea with touching the alleged victim’s vulva, but the evidence supported that he touched only her pelvic region. At the conclusion of the evidence, the military judge discussed the wording of the specification with the parties, and Honea’s defense counsel submitted language that alleged only a touching of the pelvic region. The military judge then found Honea guilty of that touching and not guilty of all other allegations, and sentenced him to confinement for 30 days and to be dismissed.

On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva. The Air Force CCA rejected the challenges, finding that assault consummated by a battery is a lesser included offense (LIO) and also finding that:

the military judge, at the request of the Defense and with the concurrence of the Government, found Appellant guilty of a specification that differed slightly from that alleged, we must consider whether this was permissible. We conclude that the Defense’s submission of the modified specification constituted a request for a minor change and, with the concurrence of the Government, it was permissible for the military judge to accept this change. . . .

Even if we concluded this was a major change, the change would still be permissible. Not only did Appellant fail to object to the change, he proposed it.

United States v. Honea, No. 38905, slip op. at 10 (A.F. Ct. Crim. App. Feb. 15, 2017).

CAAF is reviewing both of those findings.

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CAAF will hear oral argument in the Coast Guard case of United States v. Harpole, No.17-0171/CG (CAAFlog case page), on Wednesday, December 6, 2017, at 9:30 a.m.

The case involves statements made by the appellant to a military victim advocate regarding the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, __ M.J. __ (C.A.A.F. Nov. 29, 2017) (CAAFlog case page).

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CAAF will hear oral argument in the Air Force case of United States v. Chisum, No.17-0199/AF (CAAFlog case page), on Tuesday, December 5, 2017, after the argument in Katso. A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege):

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

The scope of Mil. R. Evid. 513 has been a hot topic recently (see posts categorized here). Congress ordered modification of the rule the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here). But those modifications are not at issue in this case because it was tried before they took effect.

Precisely what is at issue, however, is hard to tell because both of Chisum’s briefs are sealed, and the Air Force Appellate Government Division’s brief is heavily redacted; out of 47 numbered pages, 19 are totally redacted and 5 are partially redacted. The only brief that isn’t redacted is an amicus brief filed by the victims-rights group Protect Our Defenders in support of the Appellate Government Division that argues that the privilege trumps any constitutional rights of the accused (but that the conviction should be affirmed nevertheless).

What we do know about the case, however, is that a special court-martial composed of officer members convicted Senior Airman Chisum was of a single specification of wrongful use of cocaine on a single occasion, and sentenced him to confinement for 3 months, reduction to E-1, forfeiture of $1031.00 pay per month for 3 months, and a bad-conduct discharge. The convening authority approved only 49 days of the adjudged confinement.

The mental health records at issue belong to two prosecution witnesses who testified about using drugs with Chisum. The Air Force CCA observed that “the credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.” United States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016) (discussed here). But the CCA concluded:

Based upon our review of the mental health records at issue in this case, we are convinced that any error in failing to provide any portion of those records to the Defense was harmless beyond a reasonable doubt. The Defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records, and, after considering the entirety of the trial, the additional information contained in the records would not have changed the substance or effectiveness of their cross-examination or defense theory.

Chisum, 75 M.J. at 950. This seemed to be an entirely ordinary conclusion, except that:

On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court.

Chisum, 75 M.J. at 946 n.3. A CCA obtaining and reviewing mental health records not obtained at trial is rather extraordinary.

Those records, however, produced so willingly then and discussed so casually in the CCA’s published decision, are now guarded so carefully that it’s impossible to determine what CAAF is going to focus on during tomorrow’s argument. This is despite the fact that the witnesses – who seem otherwise entirely unrelated to Chisum – are identified only by initials.

The Air Force Government Appellate Division’s brief, however, gives a hint of what the court might discuss.

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CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No.17-0326/AF (CAAFlog case page), on Tuesday, December 5, 2017, at 9:30 a.m. This is the second certification to CAAF in this case. Previously, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF held that expert testimony did not violate Katso’s constitutional right to confront the witnesses against him. Now, CAAF will review whether the Air Force CCA erred in giving Katso 365 days of credit against the adjudged sentence to confinement as a remedy for the Air Force failing to conduct a confinement review hearing after the CCA issued its original decision in the case (a decision that was reversed in CAAF’s prior review).

I outlined the procedural history of this case and the CCA’s decision granting the credit in this post.

The Judge Advocate General of the Air Force certified three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

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CAAF will hear oral argument in the certified Army case of United States v. Simpson, No. 17-0329/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m., after the argument in RobinsonThe Judge Advocate General of the Army certified a single issue challenging the Army CCA’s reversal of Simpson’s conviction for larceny:

Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills.

Simpson’s frauds amounted to over $30,000. He ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.

On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim.

The Manual for Courts-Martial explains that:

Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them. Such use to obtain money or a negotiable instrument (e.g., withdrawing cash from an automated teller or a cash advance from a bank) is usually a larceny of money from the entity presenting the money or a negotiable instrument.

MCM, Part IV, ¶ 46.c.(1)(i)(vi). In recent years CAAF applied this understanding and the common law of larceny (on which Article 121 is based) to hold that using someone else’s debit card is larceny from either the financial institution operating the account or the merchants who accept the card, and not a larceny from the card account holder even though the account holder might suffer a consequence from the offense. United States v. Williams, 75 M.J. 129 (C.A.A.F. Feb. 23, 2016) (CAAFlog case page); United States v. Endsley, 74 M.J. 216 (C.A.A.F. Jan 14, 2015) (summ. disp.) (discussed here).

Simpson presents a practically-identical set of facts, except that the case involves electronic account information instead of an actual debit card.

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CAAF will hear oral argument in the Army case of United States v. Robinson, No. 17-0231/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m. The case challenges convictions of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The appellant was convicted by a general court-martial composed of members with enlisted representation, and was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement).

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

Specialist (E-4) Robinson attended a party at the off-base residence of another specialist. Many were in attendance, including other specialists and also junior enlisted soldiers. One of the other specialists was Specialist VM, who was drinking at the party but left because she felt uncomfortable as the only female present. Gov’t Div. Br. at 4. VM drove herself back to the barracks and while nobody stopped her from driving, one of the other partygoers followed her and then returned to the party and reported that she made it home safely. Gov’t Div. Br. at 5.

At trial VM testified that after returning to her barracks room she vomited, quickly washed, undressed, put a trash can next to her bed, and fell asleep. She testified that her next memory was of Robinson on top of her having sex with her. Her next memory after that was waking up later in the day.

Robinson testified in his own defense and told a different story. Well, he tried to. Citing Mil. R. Evid. 412, the military judge prohibited Robinson from testifying that he and VM had previously discussed having sex, prohibited Robinson’s defense counsel from calling other witnesses to testify about flirtatious activity they observed between VM and Robinson, prohibited Robinson’s defense counsel from asking VM about that prior flirtatious activity, and rejected a question from a member directed at a friend of both Robinson and VM that asked: “From what you know of SPC [VM], did she ever display interest towards SPC Robinson?” App. Br. at 8-9 (quoting record).

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CAAF will hear oral argument in the Army case of United States v. Acevedo, No. 17-0224/AR (CAAFlog case page), on Tuesday, November 28, 2017, after the argument in Jerkins, on a single issue:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

The alleged kidnapping occurred after Acevedo, AM, and others were drinking at an off-base bar. AM was 19 years-old at the time, and she wanted to leave the bar with a civilian (who she eventually married). Acevedo and a Sergeant didn’t allow AM to leave the bar with the civilian. Instead, they insisted on calling a cab to take AM back to base. AM got into the cab, Acevedo followed, Acevedo gave the driver his address, and the cab took them to Acevedo’s apartment where Acevedo and AM had sex. The following morning Acevedo gave AM $20 to pay for a cab ride back to base and told her to keep the encounter secret. Later, when he was questioned by law enforcement, Acevedo falsely denied that AM went to his residence that night.

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CAAF will hear oral argument in the Army case of United States v. Jerkins, No. 17-0203/AR (CAAFlog case page), on Tuesday, November 28, 2017, at 9:30 a.m.

The appellant is an Army major (O-4) who was convicted of assault consumated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. The members sentenced him to confinement for six months and a dismissal.

The defense called multiple witnesses during the sentencing phase of the court-martial to testify about Jerkins prior good service, including three colonels and two retired major generals. In rebuttal the prosecution offered into evidence a General Officer Memorandum of Reprimand (GOMOR) that was issued approximately two weeks before trial.

A GOMOR is an administrative reprimand that is ostensibly non-punitive and may be issued summarily by certain officials (reprimands are also authorized punishments under the UCMJ, but that requires formal proceedings). See Army Regulation 600-37 (available here). A GOMOR may – but need not necessarily – be filed in a soldier’s Official Military Personnel File, which is the permanent record of the soldier’s service. Under R.C.M. 1001(b)(2) the prosecution may then “obtain and introduce from the personnel records of the accused evidence of the . . . past military efficiency, conduct, performance, and history of the accused.”

The GOMOR issued to Jerkins reprimanded him for alleged fraternization with an enlisted soldier; specifically, Jerkins’ wife (at the time of trial), who was an active duty specialist (E-4) when they met and married, and who was voluntarily discharged before she gave birth to their child 11 months after the marriage. The GOMOR concluded:

You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army . . .

App. Br. at 4.

The defense objected to admission of the GOMOR, the military judge overruled the objection, and the Army CCA issued an opinion that did not address the issue. CAAF then granted review to determine:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

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CAAF will hear oral argument in the Air Force case of United States v. Eppes, No. 17-0364/AF (CAAFlog case page), on Wednesday, November 8, 2017, at 4 p.m. at Cornell Law School in Ithaca, New York. Two granted issues present Fourth Amendment challenges to two separate searches:

I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags,

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bag; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.

The Air Force CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination was supported by evidence of appellant’s abuse of his official position (Issue II). CAAF then granted review.

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CAAF will hear oral argument in the Coast Guard case of United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page), on Wednesday, October 25, 2017, after the argument in Bailey. CAAF specified two issues involving the members of the court-martial:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

We first discussed this case here, reviewing the Coast Guard CCA’s 2014 decision that found the issue of improper panel selection waived by the failure to make a timely objection. CAAF summarily reversed and remanded for further review (noted here). The CCA then heard oral argument (noted here) and issued a new decision (available here) affirming the findings and sentence.

The court-martial panel was initially composed of ten members, seven of whom were women. This was a disproportionate percentage of women considering the composition of the command. Of those initial ten members, voir dire revealed that five had served as sexual assault victim advocates and two more had training or experience assisting victims of sexual assault. The defense challenged three members; the military judge granted two of those challenges, and the defense used its peremptory challenge on the third (the prosecution made no challenges). Seven members remained after challenges. Five of them were women, all of whom had victim advocate experience.

These facts indicate a problem with the second issue specified by CAAF. R.C.M. 912(f)(4) states that “when a challenge for cause has been denied the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review.” The challenged member referenced in Issue II was excused by use of a peremptory challenge.

This rule was promulgated in 2005, before Riesbeck’s case was tried. Under the prior rule any error in the denial of a challenge could be preserved despite use of a peremptory challenge, but the 2005 change specifically eliminated that possibility. See United States v. Harman, 66 M.J. 710, 719 n.2 (A. Ct. Crim. App. 2008) (discussing change). Unfortunately, none of the briefs – nor the CCA’s opinions – address this. Rather, Riesbeck’s brief concludes:

Conclusion

The defense challenge against LCDR KO should have been granted. As one of five victim advocates and a crime victim herself, her presence on the panel would have created an appearance of unfairness. Further, denial of the challenge forced the defense to use its preemptory challenge unnecessarily.

App. Br. at 29. Because this member was excused peremptorily, R.C.M. 912(f)(4) bars further consideration of the challenge.

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CAAF will hear oral argument in the Coast Guard case of United States v. Bailey, No. 17-0265/CG (CAAFlog case page), on Wednesday, October 25, 2017, at 9:30 a.m. Nineteen months after it approved the NMCCA’s definition of the statutory term incapable of consenting, CAAF will consider whether such a definition must be provided to members. The court granted review of two issues, but only the first was briefed:

I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”

II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

A general court-martial composed of members with enlisted representation convicted Seaman (E-3) Bailey, contrary to his pleas of not guilty, of three specifications of sexual assault, one specification of abusive sexual contact, and one specification of assault consummated by a battery in violation of Articles 120 and 128. The panel sentenced Bailey to confinement for 18 months, total forfeitures, and a dishonorable discharge.

The charges arose out of an alcohol-fueled sexual encounter between Bailey and a 24-year-old woman. Bailey was alleged to have committed sexual acts and contacts with the women when she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance. See Article 120(b)(3)(A), 10 U.S.C. § 920(b)(3)(A). At trial, Bailey’s defense counsel asked the military judge to instruct the members that incapable of consenting means complete and total impairment, proposing the following language:

“Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.

App. Br. at 6. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.

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CAAF will hear oral argument in the Army case of United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), on Tuesday, October 24, 2017, after the oral argument in Short. A single issue questions the 2 years, 1 month, and 20 days it took a three-judge panel of the Army CCA to issue a published decision in the case. That decision granted relief for the 1 year, 9 months, and 3 days it took the convening authority to act on the result of trial; a length of time CAAF’s precedent presumes to be unreasonable. Writing for the panel, Senior Judge Mulligan noted that:

The only plausible explanation for this extraordinary delay is a total lack of rigor and accountability in the SJA’s office.

United States v. Gonzales-Gomez, 75 M.J. 965, 969 n.3 (A. Ct. Crim. App. Nov. 30, 2016) (link to slip op.). In a concurring opinion Judge Wolfe added:

These delays reflect a lack of leadership, not resources. It is carelessness so stark the United States does not even try to defend it. Given the egregiousness of the delay, and the lack of any effort to explain it, I would find this convening authority and his staff violated appellant’s due process rights.

75 M.J. at 969 (Wolfe, J. concurring). The panel found no due process violation, however it reduced the adjudged sentence by 180 days.

Private (E-1) Gonzales-Gomez was sentenced to confinement for six years and a dishonorable discharge. The convening authority approved the sentence as adjudged. Gonzales-Gomez was released from post-trial confinement on November 29, 2016; one day before the Army CCA’s decision that reduced his sentence by 6 months.

CAAF then granted review to determine:

Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

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