CAAFlog » Argument Previews

CAAF will hear oral argument in the Air Force case of United States v. Oliver, No. 16-0484/AF (CAAFlog case page), on Tuesday, February 7, 2017, after the argument in Ortiz. The court granted review of a single, re-drafted issue that involves the 2007-2012 version of Article 120:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – committed abusive sexual contact by placing a female trainee “in fear of an impact on her military career through the use and abuse of [Oliver’s] military rank, position, and authority.” App Br. at 10 (quoting charge sheet). The military judge acquitted Oliver of this offense and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object.

The difference between the charged offense of abusive sexual contact by placing in fear and the convicted offense of wrongful sexual contact is the element of lack of consent. Sort of. Well, probably.

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CAAF will hear oral argument in the Air Force case of United States v. Ortiz, No. 16-0671 (CAAFlog case page), on Tuesday, February 7, 2017, at 9:30 a.m. Three issues – one amended and another specified by CAAF – challenge the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR) in the CCA panel that reviewed the appellant’s case. An additional 85 cases are also pending before CAAF (my count as of Feb. 1) with similar issues:

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

Amended Issue: II. 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 violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.

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

Ortiz is a replacement for United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which was resolved on mootness grounds but is now the subject of a petition for certiorari (discussed here).

The Military Commissions Act of 2009 established a new CMCR as an independent Article I court of record. See 10 U.S.C. § 950f(a). Judges are appointed to the CMCR by the President through the formal mechanism of the Appointments Clause. 10 U.S.C. §950f(b)(3). However, the Secretary of Defense may also assign “commissioned officers of armed forces” to serve as appellate judges on the CMCR. 10 U.S.C. § 950f(b)(2).

The Secretary of Defense assigned Air Force Colonel Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. Afterward, in 2015, in a decision on a petition for extraordinary relief that challenged the assignment of officers like Colonel Mitchell to the CMCR, the U.S. Court of Appeals for the District of Columbia Circuit suggested that any question about the status of such assigned judges could be resolved by their nomination and confirmation by the President. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015). So, on March 14, 2016, the President nominated Colonel Mitchell to be a judge on the CMCR. Other military officers who were similarly nominated include: Captain Donald C. King, U.S. Navy; Colonel Larss G. Celtnieks, U.S. Army; Colonel James W. Herring, U.S. Army; and Lieutenant Colonel Paulette V. Burton, U.S. Army. 162 CONG. REC. S 1473-74 (daily ed. Mar. 14, 2016). The Senate confirmed the nominations and the Judges were appointed.

These appointments are the basis for the issues in Ortiz.

The case seemingly offers a simple question of how many robes a single judge can wear, but the briefs present a complex web of statutory, constitutional, and caselaw considerations. I’m not going to summarize them here. With the questions already raised before the Supreme Court, however, I suspect that during Tuesday’s argument CAAF is going to try to find a straightforward (if not outright easy) way to resolve these cases.

Case Links:
AFCCA opinion
Blog post: CAAF picks a replacement for Dalmazzi
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
Blog post: Argument preview

Disclosure: In my personal capacity I represent an appellant whose case is one of the 85 trailer cases with similar issues. 

CAAF will hear oral argument in the Air Force case of United States v. Shea, No. 16-0530/AF (CAAFlog case page), on Wednesday, January 11, 2017, after the oral argument in Price. The case presents two issues that question the composition of the three-judge panel of the Air Force CCA that reassessed the appellant’s sentence. The genesis of these issues, however, happened in a completely different case that ended after a three-judge panel of the AFCCA reversed a conviction for forcible sodomy for factual insufficiency and then the Air Force Appellate Government Division unsuccessfully moved to disqualify one of those three judges on the basis that she might appear to be biased in favor of the Government:

I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.

II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.

Senior Airman Shea was convicted of violations of Articles 90, 128, and 134, and was sentenced to confinement for four months, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved the adjudged forfeitures as an act of clemency. On appeal, the Air Force CCA reversed one of the convictions and reassessed the sentence, but erroneously approved the adjudged sentence (that included the forfeitures) rather than the lesser approved sentence. CAAF summarily remanded for a new sentence reassessment to fix this (possibly typographic) error, and the CCA ultimately approved the sentence as approved by the convening authority.

But between the time that CAAF remanded Shea (September 2015) and the CCA’s second reassessment in Shea (May 2016), the CCA decided the case of United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here). In Rivera a three-judge panel of the CCA reversed a conviction for forcible sodomy for factual insufficiency (side-stepping a due process challenge to the military justice system). Colonel Hecker was one of the appellate military judges on the panel that decided Rivera, though she did not author the opinion. She was also, at that time, assigned additional (administrative) duties within the Air Force military justice apparatus; a fact that became significant after the CCA found factual insufficiency in Rivera because after the decision was issued the Air Force Appellate Government Division moved to disqualify Colonel Hecker and get a fresh review of the case by a different panel.

The asserted basis for the motion to disqualify was that Judge Hecker’s other duties involving military justice (that she was assigned to do by the Government) created the appearance that she was biased in favor of the Government in the case the Government just lost:

the United States did file a motion for recusal in Rivera. The United States precisely stated, “[t]o be clear, the United States is not alleging actual impartiality on behalf of Judge H. Nor does it contend that she has advised or acted on Appellant’s case in her capacity with JAJM.” (J.A. at 68.) In fact, the United States argued that due to Judge H.’s assignment to JAJM, a division aligned with the United States Government that provides direction and guidance on prosecuting cases, a reasonable observer might question whether Judge H. was partial to the Government. (J.A. at 78-79.)

Gov’t Br at 5-6 (marks in original). This isn’t – and apparently wasn’t then – a joke.

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CAAF will hear oral argument in the Air Force case of United States v. Price, No. 16-0611/AF (CAAFlog case page), on Wednesday, January 11, 2017, at 9:30 a.m. The court granted review of an issue questioning whether the military judge asked too many questions during the appellant’s guilty plea inquiry:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

The pleas included admissions using cocaine, using alprazolam (Xanax), and distributing cocaine, all on divers occasions. Divers means more than one, and Price’s initial admissions during the plea were limited to two occasions. The military judge, however, pressed for additional admissions, eventually eliciting that Price used cocaine six times, that he used Xanax between one and three times per week for approximately five months, and that he distributed cocaine approximately six times. The military judge also elicited that Price sold (rather than merely distributed) cough syrup containing Codeine to another airman. Price’s defense counsel objected to the military judge’s questions as unnecessary and “forcing [Price] to give up evidence in aggravation.” App. Br. at 4 (quoting record).

The prosecution then used Price’s admissions to press for a harsher sentence, with trial counsel arguing:

What is important here is that he made the decision to use drugs but we know that it wasn’t just a one-time mistake or it was experimentation. We know that he used drugs, he used cocaine multiple times. In fact, he told us he used cocaine at least six times through August and October 2014, but that wasn’t it. He also used another drug. He used Xanax and he told you today, also, that he used that one to three times a week. This is a drug user we’re talking about.

App. Br. at 7 (quoting record). The Air Force CCA considered and rejected an assignment of error related to the military judge’s questions.

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CAAF will hear oral argument in the Army case of United States v. Lopez, No. 16-0487/AR (CAAFlog case page), on Tuesday, January 10, 2017, after the argument in Davis. The court specified a single issue for review that questions whether it was error for certain witnesses to testify about their opinion of the appellant’s guilt:

Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and indecent liberties with a child for exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence.

The case is something of a sequel to last term’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page) – one of our honorable mentions for the Top Ten Military Justice Stories of 2016 – in which a deeply-divided CAAF narrowly concluded that the defense counsel invited the erroneous admission of human lie detector testimony. In Lopez, however, invited error is unlikely (the defense objected to the questionable testimony of CL).

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CAAF will hear oral argument in the Army case of United States v. Davis, No. 16-0306/AR (CAAFlog case page), on Tuesday, January 10, 2017, at 9:30 a.m. The case presents a single issue questioning the standard of review for instructions not given:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

In 2013 Private Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

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Disclosure: In my personal capacity I represent an appellant whose case is before CAAF with issues similar to those raised in this case.

CAAF will hear oral argument in the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), on Wednesday, December 7, 2016, after the oral argument in Boyce. While the case presents two issues challenging the participation of Colonel Martin T. Mitchell in the Air Force CCA’s review of the case – and similar issues have been granted review in 52 trailer cases – CAAF will instead hear oral argument on an issue it specified that questions whether the granted issues are moot:

Specified Issue: Whether the issues granted for review are moot where the record reflects that: Martin T. Mitchell took an oath purporting to install him as a judge of the U.S. Court of Military Commission Review (CMCR) on May 2, 2016; the Air Force Court of Criminal Appeals (AFCCA) issued an opinion in the underlying case with Judge Mitchell participating in his capacity as an AFCCA judge on May 12, 2016; and the President did not appoint Mitchell to the CMCR until May 25, 2016.

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

Granted Issue II: 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 violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

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CAAF will hear oral argument in the Air Force case of United States v. Boyce, No. 16-0546/AF (CAAFlog case page), on Wednesday, December 7, 2016, at 9:30 a.m. With an issue specified by the court, CAAF will determine whether the appellant’s court-martial was affected by unlawful command influence:

The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Lt Gen Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), Lt Gen Franklin referred Airman Boyce’s case for trial by general court-martial.

There were multiple charges preferred against Boyce, and he was ultimately convicted of rape and battery of his wife. Numerous subordinates recommended that Lt Gen Franklin refer the charges to a general court-martial, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the AFCCA, and now before CAAF that the referral decision was the product of unlawful influence.

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CAAF will hear oral argument in the Army case of United States v. Commisso, 16-0555/AR (CAAFlog case page), on Tuesday, December 6, 2016, after the oral argument in RosarioThe court will hear oral argument on the following issue:

Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. The members acquitted Commisso of three specifications of rape. Commisso was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence without discussion of the issue before CAAF.

Three of the members of Comisso’s court-martial – Colonel Forsyth, Colonel Ackerman, and Lieutenant Colonel Arcari – attended Sexual Assault Review Board (SARB) meetings involving the case prior to the trial. These meetings were:

conducted with all brigade commanders and relevant staff. The meeting would begin by discussing sexual assault prevention and then move into case review. Commanders would take turns briefing the GCMCA on the status of the open cases in their respective subordinate units. Each individual case was depicted on a Power Point slide, consisting of a summary of the facts reported by the alleged victim, the ranks of the subject and alleged victim, and a summary of the services offered to the alleged victim. After case review, “the meeting would progress to more best practices from the unit’s themselves.”

App. Br. at 4 (citations to record omitted). During voir dire all of the members were asked numerous questions about their knowledge of the facts of the case:

the military judge asked the panel whether they knew “Marine Private First Class, [EW], named in the specifications.” (JA 34.) The military judge also asked whether anyone on the panel had prior knowledge of the facts or events alleged in the accused’s case. (JA 34.) Civilian defense counsel asked if any panel member was in a group that dealt with issues of sexual assault in the military, or whether they had ever been involved in the sexual assault response system. (JA 59-60.) Defense counsel also asked “[h]as anyone heard about any of the facts of this case whatsoever?” (JA 57.)

App. Br. at 6-7. Despite having attended numerous SARB meetings where Commisso’s case was discussed, Colonel Forsyth, Colonel Ackerman, and Lieutenant Colonel Arcari all responded in the negative to each of these questions. During the trial, however, they realized that they had been exposed to the case during the SARB meetings but they did not inform counsel or the military judge.

The defense discovered their attendance at the SARB meetings after trial and moved for a mistrial. But the military judge denied the motion concluding, in part, that:

“COL Forseyth [sic], COL Ackerman, and LTC Arcuri are clear they did not recall any specific information or facts from any SARB briefings that might pertain to [Appellant’s] case other than the involvement of an alleged female Marine active duty victim and a male Army NCO/E-7.”

Gov’t Br. at 11 (motification and annotation in original).

CAAF will now review the military judge’s conclusions and decision denying the defense request for a mistrial.

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CAAF will hear oral argument in the Marine Corps case of United States v. Rosario, No. 16-0424/MC (CAAFlog case page), on Tuesday, December 6, 2016, at 9:30 a.m. The court granted review of one issue that – similar to an issue in United States v. Swift, No. 16-0407/AR (CAAFlog case page) – questions whether the CCA’s review of the conviction was predicated on conduct that was not the basis for the conviction:

Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment in violation of Article 92. Specifically, the charge alleged that he:

did, on divers occasions, at or near New River, North Carolina, between on or about 13 September 2013 and on or about 21 February 2014, violate a lawful general order, to wit: Marine Corps Order 1000.9a, dated 30 May 2006, by wrongfully sexually harassing Lance Corporal BA, U.S. Marine Corps.

Gov’t Br. at 2 (quoting record) (marks omitted). Rosario was also charged with three unlawful touchings of Lance Corporal (E-3) BA during this time period – “touching her cheek with his mouth” and “touching her ear with his tongue” and “touching her hand with his hand” – in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to LCpl BA (his subordinate) during the charged time period. On appeal Rosario “argued that the evidence was factually and legally insufficient to sustain his sexual harassment conviction.” Gov’t Br. at 9. The NMCCA rejected this challenge, concluding that the physical touchings of which Rosario was acquitted were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review to determine whether the CCA’s review was predicated on the actual factual basis for the conviction.

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CAAF will hear oral argument in the Army case of United States v. Haverty, No. 16-0423/AR (CAAFlog case page), on Wednesday, November 16, 2016, after the oral argument in Swift. The case presents a single issue – specified by the court – that questions the mens rea required for hazing in violation of a general regulation:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring Specialist [BB] to consume alcohol.” App. Br. at 3 (citing record). The alcohol consumption occurred while Haverty helped the other soldier prepare gear for a field exercise. Haverty verbally pressured the other soldier into consuming approximately two shots of liquor while preparing the gear. The prosecution characterized this as “order[ing] her to drink alcohol,” in closing argument. App. Br. at 8 (quoting record). Haverty was also convicted of other (touching) offenses committed against the other solder during this encounter, including cruelty and maltreatment, aggravated sexual contact, abusive sexual contact, indecent viewing, and assault consummated by battery. Gov’t Br. at 6.

Last term, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF held that an accused charged with providing alcohol to minors in violation of an order prohibiting such conduct must act with at least reckless disregard for the true age of the minors in order to be guilty of an orders violation. Haverty returns CAAF to the question of mens rea (mental state) required to violate an order, this time in the context of hazing.

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CAAF will hear oral argument in the Army case of United States v. Swift, No. 16-0407/AR (CAAFlog case page), on Wednesday, November 16, 2016, at 9:30 a.m. The case presents three issues regarding the evidence of the appellant’s convictions of indecent acts with a child, the third of which was specified by the court:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.

The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift had admitted to touchings during the charged time periods, but he asserted that both were inadvertent (the first because he thought he was touching his wife and the second because it occurred during a dream about a former girlfriend). Swift’s statement was admitted into evidence against him without objection from his defense counsel. The Government also offered evidence of additional touchings, seemingly (though perhaps not exclusively) as uncharged misconduct under Mil. R. Evid. 404(b) and 414. One of these other touchings occurred in a van.

But the parties don’t agree on whether the touching in the van was charged or uncharged misconduct.

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CAAF will hear oral argument in the Navy case of United States v. Sager, No. 16-0418/NA (CAAFlog case page), on  Tuesday, November 15, 2016, after the oral argument in Bartee. The case presents two issues involving statutory interpretation of Article 120(b)(2), which criminalizes sexual activity with a person who is asleep, unconscious, or otherwise unaware when the accused knew or reasonably should have known that the other person was in such a condition:

I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?

II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

Aviation Ordnanceman Airman (E-3) Sager 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) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware (an erroneous disjunctive pleading). The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating awareness:

sager

Gov’t Br. at 10.

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CAAF will hear oral argument in the Marine Corps case of United States v. Bartee, No. 16-0391/MC (CAAFlog case page), on Tuesday, November 15, 2016, at 9:30 a.m. The case presents a single issue that challenges the selection of members for the court-martial:

The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

The appellant, Lance Corporal (E-3) Bartee, was convicted contrary to his pleas of not guilty, by a general court-martial, of making a false official statement and larceny. He was sentenced to confinement for 20 months and a dishonorable discharge.

Bartee wanted to be tried by a court-martial composed of members with enlisted representation. Article 25 states that a convening authority must select members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Rank – while often (but certainaly not always) a convenient proxy for some of these factors – is not one of the Article 25 criteria. However, it played a significant role in the selection of members in Bartee’s case.

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CAAF will hear oral argument in the Air Force case of United States v. McClour, No. 16-0455/AF (CAAFlog case page), on Wednesday, November 2, 2016, at 2 p.m., at Peterson Air Force Base, Colorado Springs, Colorado. The case presents a single issue that challenges a standard instruction given to members in Air Force courts-martial:

Whether AFCCA erred when it failed to grant relief where the military judge instructed the members, “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense 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.

(emphasis added).

Prior to closing a court-martial for deliberations, “the military judge shall give the members appropriate instructions on findings.” R.C.M. 920(a). Paragraph 2-5-12 of the Military Judges’ Benchbook contains Closing Substantive Instructions on Findings that instruct members on how to decide whether an accused is guilty. Those instructions include direction that:

[I]f on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

(emphasis added). In the Air Force and sometimes in other services, however, military judges give a different instruction:

If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty.

App. Br. at 3 (emphasis added). Senior Airman (E-4) McClour was convicted after the military judge gave the members in his court-martial the must-convict instruction. Numerous other service members were convicted under similar circumstances; As of this writing CAAF has granted review of eight trailer cases raising the same issue: four from the Air Force, three from the Marine Corps, and one from the Navy.

The granted issue questions whether this must-convict instruction violates United States V. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977). Martin Linen involved a deadlocked jury and a subsequent entry of an acquittal by the district court that was appealed by the Government. The court of appeals determined that the Double Jeopardy Clause barred the appeal and the Supreme Court affirmed, concluding that “there can be no question that the judgments of acquittal entered here by the District Court were ‘acquittals’ in substance, as well as form.” 430 U.S. at 571-572. In so concluding, the Court rejected the Government’s argument that “only a verdict of acquittal formally returned by the jury should absolutely bar further proceedings,” with the observation that while “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant.” 430 U.S. at 572-573 (citations omitted).

And so the issue in McClour is whether the must-convict instruction – either generally or under the unique circumstances of a court-martial – is an improper direction to the members to come forward with findings of guilt.

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