CAAFlog » Argument Previews

CAAF will hear oral argument in the Army case of United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page), on Tuesday, May 1, 2018, after the argument in Hendrix. A single granted issue bluntly questions the existence of personal jurisdiction:

Whether Appellant was subject to court-martial jurisdiction.

Private First Class (E-3) Christensen “had a history of being drunk on duty.” App. Br. at 3. That won him an early administrative separation (for alcohol abuse rehabilitation failure). But before he was separated, civilian authorities confined him on suspicion of sexual assault. Then Christensen received his separation orders with an effective date of April 17, 2013, and his DD-214 was mailed to his father on April 23, 2013. After that, Christensen was cut loose: his command stopped visiting him, it advised his father to sell his uniforms, his eligibility for military health insurance ended, and the Department of Veterans Affairs started sending him letters.

But the Army wasn’t done with him yet.

A week after the effective date of Christensen’s separation orders, the Chief of Justice (senior prosecutor) at Fort Stewart, GA, decided that “we are not quite ready for [Christensen] to be out of the Army yet.” App. Br. at 12 (quoting record). The Chief of Justice then contacted finance personnel and delayed the final accounting of Christensen’s pay (which included a debt to the Government based on Christensen’s civilian confinement prior to his discharge). A Chief of Justice doesn’t ordinarily have the power or responsibility to do this, but he did it nonetheless. It wasn’t until September 30, 2013 – a whopping five months later – that the separation orders and DD-214 were revoked. Then, on December 11, 2013, military authorities went to the residential alcohol rehabilitation program where Christensen was a patient, shackled him, and returned him to Fort Stewart where he was initially denied a uniform, an identification card, quarters, and even access to the dining facility. Christensen’s brief to CAAF explains that:

When appellant tried to eat at the dining facility, the noncommissioned officer in charge of providing a meal card said appellant “wasn’t in the system.” (JA 434–35). The unit then provided appellant with a memorandum to take to the dining facility, but a dining facility employee told him, “I can’t let you in with that.” (JA 434–35). After being rebuffed again, appellant “went back to the company,” and a sergeant major had to call the dining facility before appellant could eat. (JA 434–35).

App. Br. at 7.

That was in 2013 and Christensen was charged with a sexual offense. He challenged the existence of jurisdiction at trial, but lost. Then a general court-martial composed of a military judge alone convicted Christensen of one specification of sexual assault in violation of Article 120(a) (2012), and sentenced him to confinement for eight years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Christensen renewed his jurisdictional challenge on appeal but the Army CCA rejected it, concluding that “the processing of appellant’s pay stopped at a stage similar to that in [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)], and we find the reasoning of the Hart court persuasive and controlling.” United States v. Christensen, No. 20140372, slip op. at 9 (A. Ct. Crim. App. June 15, 2017) (link to slip op.). Hart was something of a seminal case in the year of jurisdiction. Airman First Class Hart confessed to numerous drug offenses and was subsequently discharged for physical disability. Hart received his certificate of discharge (DD Form 214) on March 5, 2004, but two days later Hart’s squadron commander moved to stop Hart’s final pay and revoke the DD-214. Within a week Hart was reported as in an unauthorized absence status, and before the end of the month he was apprehended and returned to military control.

Hart mounted aggressive challenges to the existence of court-martial jurisdiction over him, but they were denied based on the provisions of 10 U.S.C. §§ 1168(a) and 1169, which are personnel statutes outlining the requirements for a discharge. §1168 states:

§1168. Discharge or release from active duty: limitations
(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.

(b) This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.

(emphasis added). The question in Hart – and in Christensen – was whether the final pay or a substantial part of it was ready for delivery.

A deeply-divided CAAF ultimately affirmed the existence of personal jurisdiction in Hart. The majority concluded that:

The payment process was halted at the command’s request before the twenty days expired. The language of 10 U.S.C § 1168(a) setting limitations on discharge or release from active duty plainly precludes discharge unless “final pay or a substantial part of that pay” is “ready for delivery.” On the facts of this case, these criteria were not fulfilled. Accordingly, Hart was not effectively discharged and remained subject to court-martial jurisdiction pursuant to Article 2(a)(1), UCMJ.

Hart, 66 M.J. at 277. But a footnote to the first sentence quoted above included an important caveat:

This case does not involve any delay in the processing of Hart’s separation pay. We have not had occasion to address the jurisdictional effects if payment were not accomplished within a reasonable time frame established by applicable regulation for completion of the payment process.

66 M.J. at 277 n.5. The dissenters, however, rejected any binding effect of 10 U.S.C § 1168(a):

[Here] we have a case in which the discharge was ordered at the highest level within the military department, the servicemember cooperated in the separation process with no allegation of fraud on his part, the local command did not place a legal hold on the servicemember, the local command issued a discharge certificate to the servicemember, and the command did not seek to revoke the discharge until several days after the certificate was issued. Under these circumstances, Hart’s military status terminated on the date that the command delivered the discharge certificate to him.

66 M.J. at 280 (Effron, C.J., dissenting). Of the five CAAF judges who decided Hart, only two remain on the court: Chief Judge Stucky (who joined the dissent in Hart), and Judge Ryan (who was in the majority).

Now, in Christensen, CAAF will revisit both the underlying holding of Hart (that final pay must be ready for delivery for a discharge to terminate court-martial jurisdiction), and also the caveat from footnote 5 (the effect, if any, of delay) because where Hart involved only days of delay between issuance and revocation of the discharge certificate, Christensen involves a great many months and a plethora of aggravating factors.

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CAAF will hear oral argument in the interlocutory Army case of United States v. Hendrix, No. 18-0133/AR (CAAFlog case page), on Tuesday, May 1, 2018, at 9:30 a.m. The court granted review to determine:

Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.

“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory. This case involves the regulatory, R.C.M. 707, speedy trial right.

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred one day after that. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

That arraignment exceeded the 120-day deadline in R.C.M. 707. Hendrix moved to dismiss, and the military judge granted the motion and dismissed the specification with prejudice after concluding that the convening authority’s dismissal of the original charges was a subterfuge. But the prosecution appealed and the Army CCA reversed, concluding that the dismissal was not a subterfuge because it was based on the alleged victim’s unwillingness-turned-willingness to participate. CAAF then agreed to consider the case.

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CAAF will hear oral argument in the Marine Corps case of United States v. Dinger, No. 17-0510/MC (CAAFlog case page), on Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas. The court granted review to determine whether a court-martial may lawfully sentence a retired member to a punitive discharge, with the following issue:

10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ. All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

The NMCCA affirmed in a published decision (76 M.J. 552) discussed here. The CCA rejected the issue now before CAAF and also rejected a separate claim that the court-martial lacked personal jurisdiction over Dinger, explaining that retired members of the active components of the armed forces remain subject to the UCMJ because “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” 76 M.J. at at 557.

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), the UCMJ applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

The exercise of court-martial jurisdiction over retired members was the #1 Military Justice Story of 2017, and Dinger’s status as a Marine on the retired list seems indisputable. But his brief to CAAF begins by disputing it anyway:

As a civilian, Appellant appeared at his court-martial in civilian clothes.

App. Br. at 3. That Dinger was tried out of uniform is somewhat unsettling (and a better historian could probably count on one hand the number of times that’s happened under the UCMJ), but it doesn’t change the fact that he was a Marine gunnery sergeant on the retired list, entitled to pay, subject to recall, and subject to the UCMJ. In short, he was no civilian.

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CAAF will hear oral argument in the Army case of United States v. Jones, No. 17-0608/AR (CAAFlog case page), on Wednesday, April 4, 2018, at noon. The case will be argued at the School of Law, The University of Texas at Austin. CAAF granted review of three issues involving the admission of a confession of a co-conspirator:

I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Chief Warrant Officer (W2) Jones was convicted of two specifications of larceny of military property, by a general court-martial composed of a military judge alone, and was sentenced to confinement for 17 days, a reprimand, and to be dismissed. Jones was acquitted of a single specification of conspiracy to commit the charged larceny offenses.

The convictions arose out of Jones’ operation of a unit woodshop during a deployment to Kandahar, Afghanistan. The woodshop “met unit needs by completing small carpentry projects, from signage to shelving.” Gov’t Div. Br. at 3-4. It also “created numerous gifts for World War II veterans, gold-star families, foreign dignitaries, and even President Barack Obama.” App. Br. at 3.

But Jones and another Soldier – Master Sergeant (MSG Addington) – used the postal service to mail woodworking tools home, and they were charged with larceny and conspiracy to commit larceny in connection with those mailings. During separate CID interrogations, both Jones and Addington admitted to mailing the tools. During Jones’ court-martial, the prosecution offered Addington’s confession as a statement made by a co-conspirator during and in furtherance of the conspiracy. Such statements are not hearsay and are admissible under Mil. R. Evid. 801(d)(2)(E) (and the equivalent Fed. R. Evid. 801(d)(2)(E)). The defense objected but the military judge admitted Addington’s confession, Jones was convicted, and the Army court summarily affirmed.

Jones’ brief makes the rather-obvious point that “Addington’s confession to law enforcement was neither during nor in furtherance of any purported conspiracy.” App. Br. at 8. The point is so obvious that the Army Government Appellate Division concedes the error:

Regarding Issues Presented I and II, the government concedes that MSG Addington’s statement was improperly admitted under Mil. R. Evid. 801(d)(2)(E) because it was not in furtherance of a conspiracy and, therefore, its admission violated appellant’s Confrontation Clause rights because the statement represented testimonial hearsay. However, both errors were harmless beyond a reasonable doubt.

Gov’t Div. Br. at 7. But the Government Division does not concede Issue III (corroboration of Jones’ confession under the old corroboration rule), asserting that:

Even absent MSG Addington’s statement, the government provided sufficient independent evidence to raise an inference of truth for each essential fact stated in appellant’s confession.

Gov’t Div. Br. at 7.

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CAAF will hear oral argument in the Navy case of United States v. Barry, No. 17-0162/NA (CAAFlog case page), on Thursday, March 22, 2018, after the argument in Kelly. Two issues question whether unlawful influence tainted the convening authority’s approval of the findings and sentence:

Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).

Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.

Senior Chief Special Warfare (E-8) Barry was convicted of sexual assault in violation of Article 120(b) and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Lorge – approved the findings and sentence as adjudged, but the case was returned for a new action because Lorge’s Staff Judge Advocate erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence (based on the SJA’s reading of ALNAV 051/14, which I dissected here).

Lorge then took a closer look at the case, and he began to doubt the findings. He thought about reversing the conviction (a power he had in this case). But Lorge’s SJA advised against it. So Lorge reached out to then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (JAG) of the Navy and with whom Lorge had previously served. Crawford later became the JAG – a position he still holds – and was promoted to Vice Admiral. Accordingly to Lorge, Crawford advised Lorge against reversing Barry’s conviction.

Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at the rank of E-7. Then – in an unusual move – Lorge added the following language to his convening authority’s action:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence.

Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartially [sic] of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge[.]

Appellant’s Br. at 2 (marks in original). On appeal, the Navy-Marine Corps CCA affirmed the findings and sentence, rejecting four assignments of error. CAAF summarily affirmed on April 27, 2017.

But after CAAF acted Lorge provided an affidavit to Barry’s defense counsel claiming that he didn’t believe the evidence proved Barry’s guilt beyond a reasonable doubt and he wanted to disapprove the findings of the court-martial, however he did not do so because of pressure based on the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure is said to have been Lorge’s discussion of the case with Crawford. Barry’s defense asked CAAF to reconsider its action, and CAAF ordered a post-trial fact-finding hearing to investigate the affidavit. The Chief Trial Judge of the Air Force presided over the hearing and then issued findings late last year (discussed here).

CAAF then ordered briefs filed on the issues shown above that functionally ask a single, two-part question: Could Crawford (then the DJAG) unlawfully influence Lorge, and if so then did he?

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In January 2015, Major Erik Burris, a former Army prosecutor, was himself convicted by a panel of officers, contrary to his pleas, of raping, forcibly sodomizing, and battering his wife. The members also convicted him of battering his daughter and disobeying a superior commissioned officer. As punishment, Major Burris was sentenced to be imprisoned for 20 years, to forfeit all pay and allowances, and to be dismissed from the service. Major Burris’ conviction and sentencing received extensive news coverage – including from international outlets like Reuters and the Daily Mail.

On March 21, 2018 at 1:30 p.m., CAAF will hear oral argument on the following issue:

Citing Rules for Courts-Martial 905(e) and 919(c), the Army Court held that the failure of Appellant’s trial defense counsel to object to improper character evidence and improper argument waived any error. This Court, however, treats such failures as forfeiture and tests for plain error. Which court is right?

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CAAF will hear oral argument in the Army case of United States v. Armstrong, No. 17-0556/AR (CAAFlog case page), on Wednesday, March 21, 2018. The court granted review of a single issue:

Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.

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

The factual basis for the charge was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The specification as charged alleged that Armstrong: “commit[ed] sexual contact upon Mrs. BG, to wit: touching through the clothing the genitalia of the said Mrs. BG, by causing bodily harm to the said Mrs. BG, to wit: wedging his hands in between her thighs.” Gov’t Div. Br. at 9 (quoting record) (marks in original).

In United States v. Jones, CAAF explained that “the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged.” 68 M.J. 465, 468 (C.A.A.F. 2010) (marks and citation omitted). When the decision was issued we analogized it to an easy button for determining LIOs.

The question in this case is whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm

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A court-martial panel with enlisted representation convicted Sergeant Kelly, contrary to his pleas, of sexually assaulting a fellow noncommissioned officer who had become inebriated in his home after a night of drinking and playing board games. The members sentenced Sergeant Kelly to a dishonorable discharge, confinement for a year, total forfeitures of pay and allowances, and reduction to the lowest enlisted grade. That sentence was adjudged after the military trial judge instructed the panel that a dishonorable discharge was a mandatory punishment for Sergeant Kelly’s offense.

Before the Army Court, among other errors, Kelly asserted that the prosecutor’s argument (asserting that his in-court testimony was false) was improper, and that his sentence to a dishonorable discharge was inappropriately severe. In a published decision, the Army Court found that defense counsel’s failure to object to the prosecutor’s argument waived (rather than forfeited) that issue. As to Kelly’s request that his punitive discharge be set aside, the court held that it lacked the authority to even consider disturbing the mandatory minimum punitive discharge in a sexual assault case. United States v. Kelly, 76 M.J. 793 (A.C.C.A. 2017) (discussed here and discussed here).

From this background, on 22 March 2018 at 9:30 a.m., CAAF will hear oral argument on two issues. The first issue was raised by Kelly in the supplement to his petition for grant of review (discussed here):

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

On Kelly’s urging (see the footnote in Kelly’s Reply at *2), the Court specified the second issue itself (discussed here):

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

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CAAF will hear oral argument in the Navy case of United States v. Andrews, No.17-0480/NA (CAAFlog case page), on Wednesday, February 28, 2018, at 9:30 a.m. The court granted review of a single issue:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

Andrews admitted to the sexual encounter in a pretrial statement to military criminal investigators, however he claimed it was consensual. At trial he raised the defenses of consent and mistake of fact as to consent. Both sides presented evidence relevant to these defenses, but in closing argument the prosecution crossed the line.

Specifically, the Navy-Marine Corps CCA concluded that prosecutorial misconduct occurred during closing arguments when the assistant trial counsel called Andrews a liar, inappropriately mischaracterized Andrews’ statement to law enforcement, asserted that even Andrews’ defense counsel did not believe him, and misstated the law regarding capability to consent. Nevertheless:

while acknowledging that TC’s misconduct was severe, and assuming arguendo that the curative measures taken by the military judge were inadequate, we are “confident that the members convicted the appellant” of having sex with Ms. AB, while he knew or reasonably should have known that she was incapable of consenting, “on the basis of the evidence alone.” Sewell, 76 M.J. at *1415 ( citation and internal quotation marks omitted).

United States v. Andrews, No. 201600208, slip op. at 20 (N.M. Ct. Crim. App. Apr. 27, 2017).

At first look, CAAF’s grant of review appears to be limited to that finding of harmlessness. But the Navy-Marine Corps Appellate Government Division asks CAAF to look beyond it in two ways. First, the Government Division’s brief asserts that “failure to object to improper argument constitutes waiver,” Gov’t Div. Br. at 20, even though the NMCCA explicitly rejected this argument (discussed here), the Army CCA doubts it was right to accept this argument (discussed here), and CAAF will address its in a different case to be argued (by me) next month (grant noted here). Second, the Government Division disagrees with some of the CCA’s conclusions that the prosecution’s arguments were improper.

Nevertheless, in recent decisions CAAF repeatedly affirmed convictions despite conduct by prosecutors that “left much to be desired,” United States v. Short, __ M.J. __, __, slip op. at 5 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page), where it amounted to “gross governmental misconduct,” United States v. Claxton, 76 M.J. 356, 361 (C.A.A.F. 2017) (CAAFlog case page), and even when “the prosecutorial misconduct . . . was sustained and severe.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (CAAFlog case page). That is largely because when reviewing prosecutorial misconduct, CAAF “gauge[s] the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (citations omitted).

Andrews’ brief, however, makes personal blameworthiness a significant aspect of this case.

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CAAF will hear oral argument in the Air Force case of United States v. Hardy, No. 17-0553/AF (CAAFlog case page), on Tuesday, February 27, 2018, after the argument in Barker. The court granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

Unreasonable multiplication of charges (UMC) is a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach. The general rule is that “what is substantially one transaction should not be made the basis for an UMC against one person.” R.C.M. 307(c)(4).

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term to waive all waivable motions.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provisions waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision (analyzed here), a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017).

CAAF will determine if that’s right.

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CAAF will hear oral argument in the Air Force case of United States v. Barker, No. 17-0551/AF (CAAFlog case page), on Tuesday, February 27, 2018, at 9:30 a.m. Two granted issues question the Air Force CCA’s finding of error in the admission of two out of three victim-impact statements offered by the prosecution, but no prejudice to the appellant’s rights:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Airman First Class (E-3) Barker pleaded guilty to possession and viewing child pornography. He was not, however, charged with or convicted of any offense related to production or distribution of such materials; a point repeatedly emphasized in his brief. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit.

On appeal, the Air Force CCA considered the letters under two different rules applicable to such matters: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. The CCA then found that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF’s review focuses on the January statement that the CCA found admissible.

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CAAF will hear oral argument in the Air Force case of United States v. Blanks, No.17-0404/AF (CAAFlog case page), on Wednesday, January 24, 2018, at 9:30 a.m. The court granted review to determine whether:

In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Article 92(3) addresses one who “is derelict in the performance of his duties.” Twenty-four years ago, CAAF explicitly held that “simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). But forty years before that – and only two years after the UCMJ took effect – the court first acknowledged that “when the nonperformance [of a duty] is the result of a lack of ordinary care, the omission is negligent,” and that such negligence can violate Article 92(3). United States v. Grow, 3 U.S.C.M.A. 77, 86-87 (C.M.A. 1953) (quoting Manual for Courts-Martial (1951 ed.), ¶ 171c).

Recently, however, CAAF repeatedly addressed mens rea (the mental state required to commit an offense), and the subject was the #8 Military Justice Story of 2017. It got such attention in part because a functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), applied the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.

Armed with that precedent, Senior Airman (E-4) Blanks challenges his conviction (for the first time on appeal) of negligent dereliction of duty adjudged as a lesser included offense of the charged offense of willful failure to provide adequate financial support to his wife. App. Br. at 2. The underlying facts include that Blanks falsely told his command that he was married to the mother of the child (in order to obtain 10 days of parental leave after the child was born), when Blanks was really married to someone else. Blanks’ brief also offers a soap opera’s worth of additional facts. App. Br. at 3-9.

CAAF’s review, however, will focus on the law. Specifically, Blanks asks CAAF to overrule Lawson and apply Haverty to hold that “recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct,” and therefore “Blanks’ conviction for negligent dereliction of duty must be set aside.” App. Br. at 9 (marks and internal citations omitted).

It has the markings of a tough sell.

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CAAF will hear oral argument in the Air Force case of United States v. Wheeler, No.17-0456/AF (CAAFlog case page), today, after the oral argument in Condon. The court granted review of a single issue:

Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

The preemption doctrine prohibits application of Article 134 to conduct covered by the other punitive articles. See ¶ 60.c.(5)(a), Part IV, MCM (2016). Wheeler was convicted of attempted enticement of an individual under the age of 18, in violation of 18 U.S.C. § 2422(b), incorporated into the UCMJ by clause 3 of Article 134. The issue before CAAF is whether this offense is preempted by Article 120b, which is a rather comprehensive prohibition against child sex offenses.

Wheeler was convicted of:

a violation of Article 134 for an attempt to “knowingly persuade, induce, or entice an individual . . . believed to be a child who had not attained the age of 18 years . . . in violation of 18 USC Section 2422(b), a crime or offense not capital.”

Gov’t Div. Br. at 5. There was, however, no actual minor. It “was actually Special Agent WG and Sergeant AM.” Gov’t Div. Br. at 5.

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CAAF will hear oral argument in the Air Force case of United States v. Condon, No.17-0392/AF (CAAFlog case page), at 9:30 a.m. today. The court granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members.

The specified issue addresses the fact that:

Prior to trial, the defense moved to suppress the statements contained in Pros. Ex. 6 (PE-6), Appellant’s videotaped AFOSI interrogation, and the motion was denied. (JA 75-81, 624-685.) During this interrogation, Appellant invoked his right to remain silent and requested counsel. (JA 524.) Subsequent to his decision to remain silent and to request counsel, he continued speaking to the law enforcement agents present (JA 524.) Based on how the events progressed and the agents’ responses to his questions, Appellant chose to continue the interrogation. (JA 524.)

App. Br. at 4. The video of the interrogation was played to the members in its entirety, including the invocation of rights (over defense objection).

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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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