CAAFlog » Argument Previews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

App. Br. at 17.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter and told Feliciano to stop, warning him that “if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).

The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.

The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.

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CAAF will hear oral argument in the Army case of United States v. Hukill, No. 17-0003/AR (CAAFlog case page), on Tuesday, February 28, 2017, at 9:30 a.m. The court will review the decision of the Army CCA issued in the wake of CAAF’s blockbuster decision 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 – that functionally held that Hills does not apply in a judge-alone trial because there is no risk that a military judge would apply an impermissibly low standard of proof.

Specialist (E-4) Hukill was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape and abusive sexual contact. Hukill was sentenced to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge. The two offenses involved separate alleged victims, and the prosecution was allowed to use evidence of each alleged offense as evidence of Hukill’s propensity to commit the other alleged offense. At the time of Hukill’s trial such use was believed to be consistent with Mil. R. Evid. 413. Last June, however, in Hills, a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses. But the Army CCA found that because Hukill was tried by a military judge alone, the improper use of the charged offenses for propensity purposes was harmless:

We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

United States v. Hukill, No. 20140939, slip op. at 3 (A. Ct. Crim. App. Aug. 16, 2016) (op. on recon.) (link to slip op.). CAAF then granted review of two issues:

I. Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

The phrasing of the first issue is odd, considering that in Hills CAAF unambiguously held “that admitting charged conduct as M.R.E. 413 evidence was an abuse of discretion.” 75 M.J. at 353. This is because “neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.” 75 M.J. at 350. Hills stated a clear principle of law that is contrary to the ruling of the military judge in Hukill. Because there is no discretion to misapply the law, the military judge’s erroneous admission of charged offenses for propensity purposes was an abuse of discretion. The real issue is whether that error was harmless.

Yet in its brief in Hukill the Army Appellate Government Division re-litigates Hills despite the fact that the Government did not seek certiorari of CAAF’s decision.

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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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