CAAFlog » Argument Previews

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CAAF then granted review to determine:

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

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CAAF will hear oral argument in the Army case of United States v. Short, No. 17-0187/AR (CAAFlog case page), on Tuesday, October 24, 2017, at 9:30 a.m. A single issue questions the propriety of the trial counsel’s closing argument in a case where the defense counsel did not object to the argument, but did make multiple sustained objections during the prosecution’s case:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Sergeant (E-5) Short was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of simple assault and assault consummated by a battery, and was sentenced to a bad-conduct discharge. The convictions were based on allegations of domestic violence by Short of his wife (Short was acquitted of additional allegations), and the prosecution sought to introduce evidence regarding the general nature of the marital relationship. The defense objected and the military judge agreed with the defense, prohibiting the prosecution from eliciting most of its desired testimony.

Despite the military judge’s ruling, however, the trial counsel elicited improper testimony about the relationship. Short’s brief asserts that during the wife’s testimony, “there were six sustained hearsay objections, three sustained leading objections, one violation of the Section III disclosures, one violation of the Mil. R. Evid. 412 ruling, and nine violations of the Mil R. Evid. 404 ruling.” App. Br. at 8. More sustained objections occurred during the testimony of other prosecution witnesses and during cross-examination of defense witnesses. The defense repeatedly requested a mistrial, but those requests were denied. The military judge did, however, give numerous curative instructions.

Then, during closing argument, the trial counsel:

commented to the panel that SGT Short “stared at [Mrs. NS] for the entire afternoon while she gave that testimony.” (JA 446). Counsel then asked the panel to “[i]magine how uncomfortable and how terrifying it was to sit on that stand.” (JA 502).

App. Br. at 11 (marks in original). There was no objection to this argument.

The Army CCA reviewed Short’s case last year, affirming the findings and sentence in a per curiam opinion that is notable in two respects.

First, the CCA limited its review to the military judge’s actions, holding that “as a court of criminal appeals we grade the homework of the trial court, not the trial counsel.” United States v. Short, No. 20150320, slip op. at 3 (A. Ct. Crim. App. Nov. 17, 2016). This seems to run contrary to CAAF’s precedent that “look[s] at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)

Second, the CCA reviewed the closing argument, to which there was no objection, for plain error (finding none). This is contrary to a more recent, en banc, decision of the same court holding that the failure to object to improper argument waives any error. See United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), rev. granted on other grounds, __ M.J. __ (C.A.A.F. Oct. 12, 2017) (noted here). The Navy-Marine Corps court agreed, adopting the Army court’s reasoning on this issue.

Considering this, CAAF’s review will almost certainly reach beyond the facts of this case, touching on both the appropriate scope of a CCA’s review and the standard of review for argument in the absence of an objection at trial.

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CAAF will end its first week of oral arguments in the 2017 term on Wednesday, October 11, 2017, when it hears argument in the interlocutory Air Force case of United States v. Pugh, No. 17-0306/AF (CAAFlog case page). Pugh is a particularly interesting case because it is an interlocutory appeal of a ruling dismissing a charge after the members returned findings of guilty and a sentence. CAAF granted review of a single issue:

Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

A general court-martial composed of officer members convicted Major Pugh of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

United States v. Pugh, No. 2016-11, slip op. at 2 (Mar. 10, 2017) (discussed here). AFI 90-507 is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced Pugh to a dismissal and the court-martial was adjourned. Nineteen days later the military judge granted the motion to dismiss, concluding that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” Slip op. at 3.

The prosecution appealed and the Air Force CCA reversed, finding that “it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program.” Slip op. at 6. Pugh then petitioned CAAF for review.

Pugh’s reply brief include this nice summary of the issue:

The parties agree that the military duty in question is the necessity to protect the reliability and integrity of the drug testing program. App. Br. at 6; Govt. Br. at 20. Thus, the question for this Court is whether banning legally available commercial food products sold in the United States is reasonably necessary to protect the reliability and integrity of the drug testing program. See Para. 14c(2)(a), Part IV, MCM (2012 ed.) (regulation of activities reasonably necessary to accomplish a military mission) (emphasis added).

Reply. Br. at 6.

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CAAF will hear oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on Wednesday, October 11, 2017, at 9:30 a.m. Mangahas is a lieutenant colonel in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. However, she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.

The passage of so much time prompted a defense motion to dismiss based on violation of Mangahas’ Fifth Amendment (due process) right to a speedy trial. The Due Process Clause of the Fifth Amendment applies to egregious or intentional tactical pretrial delay by the prosecution where there is actual prejudice to the accused. See United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). This is a difficult burden for an accused to meet.

A military judge, however, found both: egregious delay in the nearly two decades between the time the alleged victim made a report and the time Mangahas was brought to trial, and prejudice in the death of a Coast Guard Academy counselor – identified by the initials PM –  who the alleged victim claims discouraged her from participating in the investigation back in 1997. Then, because this violated the Due Process Clause, the military judge dismissed the charge with prejudice (meaning Mangahas may never be tried).

The prosecution appealed and a three-judge panel of the Air Force CCA reversed, finding that “the actual substance of what PM’s trial testimony would be is speculative,” and that “even assuming that PM were to directly rebut [the alleged victim], the absence of that testimony, as discussed above, does not deny Appellee the ability to mount an effective defense.” United States v. Mangahas, Misc. Dkt. No. 2016-10, slip op at 11-12 (A.F. Ct. Crim. App. Ap. 4., 2017) (discussed here). Mangahas then appealed to CAAF, and the court granted review of a single issue:

Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.

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CAAF will hear an unusual argument on Tuesday, October 10, 2017, it’s first day of oral arguments in the term. Military appellate defense counsel representing Master Sergeant (E-8) Hennis – whose conviction and capital sentence were our #2 military justice story of 2010 – will go up against military counsel for the Army Government Appellate Division to argue a “Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings.”

It’s not the first time CAAF has heard oral argument on a motion, but I believe that it is the first such oral argument this century.

The motion asks CAAF to:

order the government to provide funding and contract for learned appellate counsel, a capital mitigation specialist, and a fact investigator. Further, appellant requests this Court order the government to provide defense team members deemed necessary in accordance with AR 27-10. Finally, appellant requests oral argument and a stay of proceedings pending receipt of required resources pursuant to C.A.A.F. R. 33 and 40.

Mot. at 1-2.

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CAAF’s will hear oral argument in United States v. Guardado, No. 17-0183/AR (CAAFlog case page), on Tuesday, October 10, 2017, after the argument in Jacobsen. The court granted review of two issues but requested briefing on only the first, which challenges the Army CCA’s published decision that identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes:

I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.

II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.

In a published decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the Army CCA dissected CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Concluding that the Hills decision should be applied broadly, the panel nevertheless found that the improper use of charged sexual offenses as evidence of Guardado’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors:

First, we note the CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J. at 56-57. . . .

Second, we believe the intertwined nature of the conduct in Hills was central to the court’s assessment of prejudice. . . .

Third, when we look at a specification-by-specification analysis, we are unable to find prejudice to appellant when he was convicted of only one offense. . . . when the panel acquitted appellant of the three other specifications of sexual assault, any violation of the presumption of innocence as to those specifications resulted in no prejudice. . . .

Fourth, we are convinced beyond a reasonable doubt that even if no propensity instruction had been given, the results in this trial would have been the same. . . .

Finally, but least importantly, we find, to the extent that the military judge’s instructions were confusing, any confusion in this case was harmless. . . .

75 M.J. at 897-898. Unfortunately, these five factors are barely referenced in the briefs filed in advance of next week’s argument. Rather, both sides offer a narrow view of the facts of the case, and mostly ignore the larger question of the appropriate framework to analyze a Hills error.

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CAAF will hear the first oral argument of the 2017 term on Tuesday, October 10, 2017, at 9:30 a.m., in the certified Army case of United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page). A single issue challenges the Army CCA’s rejection of an interlocutory prosecution appeal under Article 62, UCMJ:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

The case is a general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. Jacobsen’s defense counsel gave an opening statement that promised the members that “over the course of this trial you’re going to hear that [the alleged victim] has told five different stories about what happened on that couch on the evening of Valentine’s Day of this year going into the 15th of February.” Gov’t Div. Br. at 2. Then, on cross-examination of the alleged victim, the defense elicited evidence of numerous prior inconsistent statements about the alleged offense. In response, the prosecution:

sought to call a CID special agent to testify to the victim’s prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected.

The military judge ruled that M.R.E. 801(d)(1)(B)(ii) does not apply in this case and that the Government could not admit the victim’s CID statement as rehabilitation evidence. The Government appealed his decision under Article 62, UCMJ.

Gov’t Div. Br. at 3 (citations to record omitted). Mil. R. Evid. 801(d)(1)(B) is part of the hearsay rule and is identical to Fed. R. Evid. 801(d)(1)(B). The federal rule was amended in 2014 in a way that makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). The amendment was incorporated into the MCM in 2016 (noted here). The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness. See Fed. R. Evid. 801 advisory committee note to the 2014 amendment. See also United States v. Adams, 63 M.J. 691, 696-97 (A. Ct. Crim. App. 2006) (discussing circumstances when prior consistent statements are relevant).

Article 62 authorizes a prosecution appeal under certain, limited circumstances. One of them is of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). Based on this authorization, the prosecution appealed the military judge’s ruling that prohibited the CID agent from testifying about the alleged victim’s prior statements.

But the Army CCA did not address the admissibility of the CID agent’s testimony. Rather, it rejected the prosecution’s appeal as unauthorized under Article 62. In a short order the CCA dismissed the appeal, concluding:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en banc). In contrast, the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria.

United States v. Jacobsen, No. 20160768, slip op. at 1 (A. Ct. Crim. App. Feb. 6, 2017) (order) (marks in original) (discussed here). The Government Appellate Division sought reconsideration and the CCA reached the same conclusion on March 16, 2017, again highlighting the different language of the civil and military statutes.

The JAG then certified the case to CAAF to determine whether a CCA may determine that a prosecution appeal does not meet the Article 62 criteria despite a trial counsel’s certification that it does.

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

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

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

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

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

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

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

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

The case began:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CAAF then granted review.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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