CAAFlog » Argument Previews

CAAF will hear the first oral argument of the October 2019 Term in United States v. Rice, No. 19-0178/AR (CAAFlog case page), on Wednesday, October 16, 2019, at noon, at the J. Reuben Clark Law School at Brigham Young University in Provo, Utah. The court will review the Army CCA’s published decision that found a double jeopardy violation but did not give any remedy, with a single granted issue:

Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. He was eventually prosecuted in both federal court and at a court-martial for reasons that remain unexplained but that the Army CCA described as a “debacle which we are now compelled to review.” United States v. Rice, 78 M.J. 649, 651 (A. Ct. Crim. App. Dec. 18, 2018).

Rice’s misconduct was discovered in 2013. In 2014, he was indicted by a grand jury on two counts of violating 18 U.S.C. § 2252A, one alleging possession of child pornography and the other alleging receipt or distribution of child pornography. In 2015 – while the federal charges were proceeding to trial – charges based on the same misconduct were referred for trial by general court-martial, including three specifications of service discrediting conduct in violation of Article 134 (clause 2) for possessing and distributing child pornography.

After a jury trial, Rice was convicted of both civil offenses on May 6, 2016, but sentencing was deferred. Rice then moved to dismiss the court-martial charges on the basis of double jeopardy, arguing that they were a successive prosecution of one of the two civil offenses. The military judge denied the motion, and Rice entered conditional pleas of guilty (preserving his double jeopardy objection) on October 24, 2016, and was sentenced to confinement for five years and a dismissal. Rice then returned to District Court for sentencing on the federal civil offenses, where he also made a double jeopardy claim. The District Court agreed that the double jeopardy clause was violated and it dismissed the possession conviction on that basis. It did not dismiss the receipt/distribution conviction, and for that offense Rice was sentenced to imprisonment for 142 months (11 years, 10 months).

Rice renewed his double jeopardy objection to the court-martial prosecution on appeal, and the Army CCA agreed that a double jeopardy violation occurred. Specifically, the CCA concluded that Rice’s possession conviction in the District Court was legally duplicative of his court-martial convictions because his possession conviction under 18 U.S.C. § 2252A “necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ.” 78 M.J. at 654. Yet that conclusion turned on the CCA’s interpretation of the three separate clauses of Article 134 as constituting a single (and singularly broad) offense:

the government may not obtain two convictions at the same court-martial on two specifications that are identical save for what clause of Article 134 is alleged. An accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct. . . .

Clause three of Article 134 incorporates the entire federal criminal code. The three clauses of Article 134 are disjunctive, and therefore it does not matter for Blockburger purposes which terminal elements are alleged because all three may be alleged and only one need be proven in any given specification. See Williams, 78 M.J. at 546-47. Thus, under the unique circumstances of appellant’s two prosecutions, the elements of his District Court conviction for possession of child pornography were duplicated in each of his court-martial convictions for possession of child pornography. The government placed appellant in jeopardy twice.

78 M.J. at 654. Nevertheless, despite finding a double jeopardy violation the CCA granted Rice no relief on the basis that doing so would be an undeserved windfall:

appellant sought and received dismissal of the District Court possession count that caused a double jeopardy violation. Appellant’s motion to the District Court was predicated on the court’s inability to render a lawful sentence. Appellant, however, went beyond asking merely that no sentence be imposed, and sought dismissal of the possession count entirely. Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.

Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an “unjustified windfall[].”

78 M.J. at 656 (citations omitted).

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CAAF will hear oral argument in the Air Force case of United States v. Voorhees, No. 18-0372/AF (CAAFlog case page), on Wednesday, February 20, 2019, after the argument in Tovarchavez. Three granted issues question the mens rea necessary to commit conduct unbecoming an officer and gentleman and the propriety of numerous aspects of the prosecution’s closing argument:

I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees had inappropriate communications with three women (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but was reversed by the Air Force CCA as factually insufficient in 2016. The CCA ordered a sentence rehearing, and Voorhees was sentenced to a reprimand and to be dismissed. The CCA affirmed the revised sentence last year.

On appeal, Voorhees challenged the sufficiency of the Article 133 specifications to state an offense and also the prosecution’s closing argument as improper. The CCA rejected the challenges in its 2016 opinion, and CAAF is now reviewing that decision.

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CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

Specialist (E-4) Tovarchavez was charged with sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; Article 59(a) states that:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

Put differently, if a legal error is harmless then a court-martial conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies; the error is prejudicial unless it is harmless beyond a reasonable doubt. And “an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.

Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.

The Government Divison’s brief asserts that the law is not so clear.

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CAAF will hear oral argument in the Army case of United States v. Gleason, No. 18-0305/AR (CAAFlog case page), on Tuesday, February 19, 2019, after the argument in McDonald. The court granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

Gleason presents an substantially-identical challenge. Staff Sergeant (E-6) Gleason was convicted of multiple offenses including a novel Article 134 specification alleging that he interfered with the ability of his victim to place a call requesting emergency assistance. Gleason asserts that the novel specification was improper because it eliminated elements of the enumerated Article 134 offense of obstruction of justice.

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CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

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CAAF will hear oral argument in the Air Force case of United States v. Meakin, No. 18-0339/AF (CAAFlog case page), on Wednesday, January 23, 2019, after the argument in Hutchins. The court granted oral argument of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography (but those offenses are seemingly unrelated).

Meakin argued at the court-martial that the charges must be dismissed because his communications were private and protected by the First Amendment, and Meakin renews that argument at CAAF. His brief acknowledges that he “communicated repugnant sexual fantasies involving children,” App. Br. at 15, nevertheless he asserts that the evidence fails to meet the heightened burden of proof required for a conviction of conduct unbecoming based on constitutionally-protected activity.

CAAF’s review involves a two-step process. First it must determine whether Meakin’s chats were protected speech. Then, if they were, CAAF must determine if the prosecution proved that a “clear and present danger that the speech will, in dishonoring or disgracing the officer personally, seriously compromise the person’s standing as an officer.” United States v. Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994) (marks and citation omitted).

Yet Meakin’s brief argues for a third step in the process: that CAAF “may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” App. Br. at 40 (quoting United States v. Rapert, 75 M.J. 164, 171 (C.A.A.F. 2016) (CAAFlog case page)) (marks and citations omitted).

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CAAF will hear oral argument in the Marine Corps case of United States v. Hutchins, No. 18-0234/MC (CAAFlog case page), on Wednesday, January 23, 2019, at 9:30 a.m. This is CAAF’s third review of the long-running prosecution of Sergeant (E-5) Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

The Navy-Marine Corps CCA reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the CCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. The conspiracy conviction, however, implicated conduct of which Hutchins was acquitted at the first trial. Specifically, Hutchins was originally charged with a conspiracy to commit six offenses (larceny, housebreaking, kidnapping, false official statements, murder, and obstructing justice), and the charge alleged 21 overt acts in furtherance of that conspiracy. The members of the first court-martial found Hutchins not guilty of two of the six alleged offenses (housebreaking and kidnapping) and two of the alleged 21 overt acts, and was also acquitted of other charged offenses (including premeditated murder and obstruction of justice). Nevertheless, at the 2015 rehearing the prosecution introduced evidence of all six possible objects of the conspiracy, and it also introduced evidence of the other offenses of which Hutchins was acquitted. The prosecution was allowed to do that because the military judge found that evidence admissible for the limited purpose of proving that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial).

Hutchins claims that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing). The Supreme Court recently explained that:

In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).

Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016). The NMCCA rejected Hutchins’ claim of error, and CAAF granted review of a single issue:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Hutchins argues that the military judge did err, and that the error affected all of the charges and so they should all be dismissed with prejudice and he should be freed from any criminal consequences for his involvement in the killing.

The Navy-Marine Corps Appellate Government Division argues that issue preclusion doesn’t apply to the facts of this case, and also that it doesn’t apply to any rehearing.

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CAAF will hear oral argument in the certified Marine Corps case of United States v. Perkins, No. 18-0365/MC (CAAFlog case page), on Tuesday, January 22, 2019, after the argument in Smith. The Judge Advocate General of the Navy certified two issues to the court, on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property that was found in the garage of Perkins’ on-base home. The search authorization that gave military investigators access to that garage is at the heart of the case.

Perkins was in a relationship with a woman who alleged to military law enforcement that he was extorting her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. They found no illicit pictures or videos in the house, but they did find evidence of other misconduct.

Perkins moved to suppress that other evidence, arguing that the search of his home lacked probable cause. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

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CAAF will hear oral argument in the Army case of United States v. Smith, No. 18-0211/AR (CAAFlog case page), on Tuesday, January 22, 2019, at 9:30 a.m. The first of two cases to be argued that day (both involving the good faith exception to the exclusionary rule), Smith involves an appellate-stage challenge to the admission of the fruits of a search of electronic devices.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Warrant Officer One (W01) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with the other devices. The authorization was granted, several other devices were seized, and all of the devices were sent for examination.

The examination found no incriminating evidence on the devices seized from Smith’s home, and the examiners were initially unable to access the iPhone because it was locked. But because Smith previously synced his iPhone with one of his other devices, the investigators were able to use that prior connection to access the iPhone. After doing that, they discovered incriminating videos on the iPhone. Smith’s defense counsel moved to suppress the videos, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was overruled, the videos were admitted, and Smith was convicted.

On appeal, Smith renewed his objection to the admission of the videos, but with a new argument: that the search of the devices from his home – that made it possible to search the iPhone – lacked probable cause. The argument was based on CAAF’s opinion in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), part of the #7 Military Justice Story of 2017, and claimed an insufficient nexus between Smith’s phone and other devices. The Army CCA refused to consider Smith’s new argument and also concluded that the good faith exception applied (while noting that the military judge also determined that the inevitable discovery doctrine applied).

CAAF then granted review of two issues that embody a plethora of questions about the trial and appellate proceedings. The first issue presumes that the search of the devices seized from Smith’s home was unlawful (something no court has said), it presumes that the incriminating videos on Smith’s iPhone would never have been discovered but-for the search of the other devices (a question of technological capabilities), and it challenges the application of the good faith exception under the facts of this case. The second granted issue challenges the Army CCA’s refusal to consider Smith’s new suppression argument based on Nieto, and it suggests that the argument isn’t so much new as it is just a clarification of the trial stage objection that was not succinctly articulated.

It’s a complicated case that is made even more complicated by the briefs, because Smith offers a second new basis for suppression (that investigators exceeded the scope of the search authorization) and the Army Government Appellate Division makes numerous concessions.

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CAAF will hear oral argument in the Navy case of United States v. Forbes, No. 18-0304/NA (CAAFlog case page), on Tuesday, December 4, 2018. A single issue questions whether a guilty plea to sexual assault should be reversed:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm in violation of Article 120 (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery.

74 M.J. at 68. Applying Gutierrez to Forbes’ guilty plea the Navy-Marine Corps CCA explained:

Gutierrez’s conduct—engaging in otherwise-consensual sexual activity without telling his partners that he had HIV—included an “offensive touching to which his sexual partners did not provide meaningful informed consent” because “‘[w]ithout disclosure of HIV status there cannot be a true consent.'” Id. (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.)).

Here, in explicit reliance on the CAAF’s holding in Gutierrez, the government charged the appellant with both assault consummated by battery in violation of Article 128(a), UCMJ, and sexual assault by bodily harm in violation of Article 120(b)(1)(B), UCMJ. In a bench memorandum, the trial counsel explained that since “failure to disclose an accused’s HIV status constituted an offensive touching because the accused’s partners did not provide informed meaningful consent, ‘the appropriate charges would be either 1) sexual assault by bodily harm; or 2) assault consummated by battery.'”

United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). The CCA also noted:

We make no distinction between the appellant’s failure to inform his sexual partners that he was HIV-positive and any affirmative statement denying that he was HIV-positive or intimating that he was not HIV-positive. Gutierrez does not address the situation where an HIV-positive individual engages in sexual activity after denying his positive status. It is enough, under Gutierrez, that the appellant simply did not tell his partners that he was HIV-positive.

77 M.J. at 772 n.20. Now CAAF will determine if that’s correct.

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CAAF will hear oral argument in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page), on Wednesday, December 4, 2018, at 11 a.m. (after the arguments in Cooper and Briggs). The court granted review of one issue questioning whether changes to three specifications were proper:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

In 2012, Staff Sergeant (E-6) Stout pleaded guilty to abusive sexual contact with a child, indecent liberties with a child, and wrongful possession of child pornography, in violation of Articles 120 and 134, and was sentenced to confinement for eight years, reduction to E-1, and a bad-conduct discharge. As part of a plea agreement various other charges were dismissed. But on appeal Stout challenged his pleas and his pleas were reversed by the Army CCA in an opinion discussed here.

A rehearing was authorized, but Stout did not plead guilty again. Instead, he contested the charges. A general court-martial composed of a military judge alone convicted him of committing many more offenses than he originally pleaded guilty to committing: three specifications of abusive sexual contact with a child, two specifications of indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. Stout was then sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge (the new convictions involved things not included in the original convictions, avoiding the sentence limitation in Article 63).

The charges at the rehearing, however, were not identical to the charges at the original trial. Instead, there were “dozens of amendments to the charge sheet.” App. Br. at 4. Many of the amendments were minor (such as correcting spelling mistakes), but three changes “expanded the timeframes of Specifications 1 and 6 of Charge I, and the Specification of Charge II.” App. Br. at 4. Specifically:

For Specification 7 of Charge I,the dates were changed from “between on or about 14 January 2009 and on or about 28 January 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge II, the dates were changed from “between on or about 14 February 2009 and on or about 22 March 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge III, the dates were changed from “between on or about 1 November 2009 to on or about 31 December 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126).

Gov’t Div. Br. at 7. Stout objected, asserting that the expanded time periods were a major change, but the military judge overruled the objection and the Army CCA affirmed. Argument over that objection now continues at CAAF.

Last year, in United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (CAAFlog case page), a unanimous CAAF explained that a major change is one where an “additional or different offense is charged … [or] substantial rights of the defendant are not prejudiced.” It further explained that because R.C.M. 603(d)  – which prohibits such changes – does not discuss prejudice, when there is a major change “there is no charge to which jurisdiction can attach” and reversal is required. 76 M.J. at 301-302. Accordingly, if Stout can convince CAAF that the military judge and Army CCA got it wrong, the affected charges will be dismissed.

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CAAF will hear oral argument in the Air Force case of United States v. Briggs, No. 16-0711/AF (CAAFlog case page), on Tuesday, December 4, 2018, after the argument in Cooper. The case was remanded to CAAF by the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), which reinterpreted the statute of limitations for the offense of rape of an adult. CAAF will consider two issues involving the application of the new rule in this case:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

The Air Force CCA affirmed the findings and sentence in 2016. The case then became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may properly also serve as an assigned judge of the Court of Military Commission Review. Prior to the Court deciding Ortiz, however, CAAF decided Mangahas.

In Mangahas, CAAF reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult. CAAF had previously held that under the UCMJ, rape qualified as an offense punishable by death and so was exempt from the 5-year statute of limitations in effect prior to a 2006 amendment that extended the statute of limitations for rape indefinitely. But in Mangahas CAAF clarified that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was five years (until it was changed in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

While Mangahas, Collins, and Briggs are all Air Force cases, that is not the only service to use military law to prosecute decades-old allegations of sexual assault. The Army, for example, dismissed such charges against a retired two-star general earlier this year in the wake of Mangahas.

Briggs presents questions that are closely-related to the Mangahas decision: whether the extension of the statute of limitations enacted in 2006 applies to conduct alleged to have occurred before the enactment of the 2006 change, and how to address that issue when the defense fails to raise it at trial.

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CAAF will hear oral argument in the certified Navy case of United States v. Cooper, No. 18-0282/NA (CAAFlog case page), on Tuesday, December 4, 2018, at 9:30 a.m. Four issues related to Cooper’s choice of defense counsel were certified to CAAF:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

Persons accused of criminal offenses in the civil courts are generally appointed an attorney to represent them only if they are indigent. Every accused at a court-martial, however, is detailed a military defense counsel free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (however that person must be reasonably available as determined by service regulations that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) JB and Lieutenant Commander (LCDR) NG. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by LT JB and LCDR NG and by nobody else. But Cooper also wanted to be represented by individual military defense counsel (IMC), and on appeal Cooper claimed that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result.

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CAAF will hear oral argument in the Army case of United States v. Nicola, No. 18-0247/AR (CAAFlog case page), on Wednesday, November 7, 2018, after the argument in Bodoh. The court will determine:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute also defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a junior female soldier – identified as Corporal (CPL) AA – during a night of drinking with other soldiers both on and off post. CPL AA overconsumed and Nicola took her back to her barracks room, where her next memory was sitting naked on the floor of her shower with the water running. She also accused Nicola of committing a sexual act upon her in the shower, but he was acquitted of that.

Nicola testified in his own defense at trial and said that after he brought CPL AA back to her room, he told her to take a shower to help her sober up. He said that she then spontaneously removed her clothes and he saw her in her bra before he could look away. She then went into the shower where she remained for a long time, and Nicola admitted to checking on her at one point (after she didn’t respond when he shouted to her) during which he saw her naked. The prosecution argued that Nicola committed an indecent viewing when he saw CPL AA in her bra as she disrobed and then again when he saw her naked in the shower.

Nicola’s appeal doesn’t challenge that he viewed CPL AA’s private areas, but rather that her “reasonable expectation of privacy was relinquished by taking her own clothes off in front of another person, or superseded by placing herself in harm’s way when she was unresponsive in the shower.” App. Br. at 7.

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CAAF will hear oral argument in the Army case of United States v. Bodoh, No. 18-0201/AR (CAAFlog case page), on Wednesday, November 7, 2018, at 9 a.m. (earlier than the normal 9:30). The court granted review of a single issue:

Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training

Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.

Bodoh’s convictions involve sexual acts with the civilian wife of another soldier, at the home of the other soldier, while all three of them (plus a fourth person) abused alcohol and cold medicine. During voir dire the prosecution asked the members questions that referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The questions involved the effect of the SHARP program and whether the members could be impartial despite receiving SHARP program training. The voir dire questions did not draw an objection, a comment from the military judge, or a challenge to any member.

Bodoh testified in his own defense. He admitted that sexual acts occurred, but he claimed that they were consensual. During pretrial questioning by law enforcement, however, Bodoh did not admit to the sexual acts, and at trial his defense counsel asked him to explain that earlier omission. Bodoh responded that he was “very frightened when they told me that [the alleged victim] pulled the SHARP defense.” Gov’t Div. Br. at 13 (quoting record).

Once Bodoh mentioned the SHARP program, the prosecution ran with it. On cross-examination the trial counsel asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training he had received, eventually drawing objections from the defense that the military judge sustained. Later, during closing arguments, the trial counsel repeatedly referenced the SHARP program when arguing that there was no consent, that the alleged victim was vulnerable and incapable of consenting (due to the alcohol and cold medicine), and that her behavior during and after the sexual acts did not support Bodoh’s claim of consent. In particular, the trial counsel argued that the SHARP program demonstrated that the defense theory of consent was based on myths:

Also she’s fearful with everything he’s done and never having any consequences, never anyone doing anything to him, no one, the command, no one doing anything to him. She simply didn’t fight back. She froze. Everyone would wish she would have fought back. Everyone would wish she would have yelled and screamed. And those myths that [defense counsel] said aren’t that common anymore, that’s all that [defense counsel] cross examined her on. That’s all your Soldiers learn in the SHARP program every day about those myths. It’s not that common.

Appp. Br. at 10-11 (quoting record). Bodoh’s defense counsel did not object.

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