CAAFlog » Argument Previews

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

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

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

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

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

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

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

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

CAAF will determine if that’s right.

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

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

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

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

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

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

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

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

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

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

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

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

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

It has the markings of a tough sell.

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

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

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

Wheeler was convicted of:

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

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

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

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

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

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

The specified issue addresses the fact that:

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

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

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CAAF will hear oral argument in the Air Force case of United States v. Mooney, No. 17-0405/AF (CAAFlog case page), on Wednesday, January 10, 2018, after the argument in Carpenter. A single issue questions whether court-martial sentences may run consecutively (one-after-another) with federal sentences:

Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.

Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.

Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.

The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court.

The Air Force CCA approved this action in a published decision, concluding that:

Given the support for this disposition in DoD and Air Force regulatory guidance and the absence of conflicting authorities within the UCMJ, we find the convening authority’s action was sufficient to toll the effective date of confinement under Article 57(b), UCMJ, and thereby require Appellant’s military sentence to confinement be served consecutively with his federal sentence.

United States v. Mooney, 76 M.J. 545, 549-550 (A.F. Ct. Crim. App. Mar. 21, 2017) (discussed here).

The UCMJ, however, does not expressly allow consecutive sentences where a federal civil conviction is followed by a court-martial conviction. But the Code does address all other possible scenarios, permitting consecutive sentences where a court-martial conviction is followed by a civil conviction (Article 14), and where there is a court-martial sentence and one adjudged by a state or foreign court (Article 57a). The Air Force CCA interpreted that silence as a grant of discretion. 76 M.J. at 548.

CAAF granted review to determine if that is correct.

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CAAF will hear oral argument in the Air Force case of United States v. Carpenter, No. 0476/AF (CAAFlog case page), on Wednesday, January 10, 2018, at 9:30 a.m. CAAF granted review of a single issue:

Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.

The briefs are sealed, so there’s not much to preview. But from the Air Force CCA’s opinion (available here) we can see that Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. Carpenter’s defense was that he mistakenly believed the boy was 16.

To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts (soliciting sexual encounters) in which the boy claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Case Links:
AFCCA decision
• Blog post: CAAF grant
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (sealed)
• Blog post: Argument preview

CAAF will hear oral argument in the Army case of United States v. Williams, No. 17-0285/AR (CAAFlog case page), on Tuesday, January 9, 2018, at 9:30 a.m. The case is before CAAF for the second time and – also for the second time – CAAF will consider the impact of the military judge’s instruction that allowed the members to use one charged sexual offense as evidence of Williams’ propensity to commit another charged sexual offense. Such an instruction was found to be both constitutional error and inconsistent with the military rules of evidence 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).

CAAF will hear argument on a single issue:

Whether the Army Court of Criminal Appeals erroneously found that the propensity instruction given in this case falls within an exception to the holding in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

In 2013, Sergeant (E-5) Williams was convicted of the rape of his first wife (Charge I) and the forcible sodomy of his second wife (Charge II), by a general court-martial composed of members with enlisted representation. Before trial his defense counsel filed a motion to preclude the prosecution from using the charged offenses as evidence of Williams’ propensity to commit the charged offenses. “[T]he military judge did not make a specific ruling on the motion.” Gov’t Div. Br. at 9. However the military judge functionally denied the motion by giving the members a fairly standard (at the time) instruction that allowed them to use Charge I (rape of the first wife) as evidence of Williams’ propensity to commit Charge II (forcible sodomy of the second wife).

The military judge’s instruction had a certain logic because propensity must exist at the time of the offense to be relevant. Put differently, evidence that Williams assaulted his second wife wasn’t relevant to show his propensity to assault his first wife, because the second came after the first. The argument that he did it before so he’ll do it again only works in one direction. By instructing the members that they could use the first allegation to prove the second allegation, but not instructing that the second could prove the first, the military judge merely acknowledged this temporal reality.

Nevertheless, it was error, for all the reasons explained by CAAF in Hills. But the Army CCA determined that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:

Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

Slip op. at 2 (emphasis in original). Next week’s oral argument challenges that determination.

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CAAF will hear oral argument in the Air Force case of United States v. Honea III, No.17-0347/AF (CAAFlog case page), on Wednesday, December 6, 2017, after the argument in Harpole. The court granted review of two issues involving the appellant’s conviction of assault consummated by a battery in violation of Article 128 as a lesser included offense of abusive sexual contact by causing bodily harm in violation of Article 120(h) (2007):

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the government to proceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

Captain (O-3) Honea was charged with numerous offenses. One alleged a sexual touching as abusive sexual contact in violation of the version of Article 120 in effect from 2007-2012. But the military judge determined that the specification failed to state a sexual offense. Instead, the military judge found that the specification stated only the lesser included offense of assault consummated by a battery, and Honea pleaded not guilty to that offense.

The wording of the specification charged Honea with touching the alleged victim’s vulva, but the evidence supported that he touched only her pelvic region. At the conclusion of the evidence, the military judge discussed the wording of the specification with the parties, and Honea’s defense counsel submitted language that alleged only a touching of the pelvic region. The military judge then found Honea guilty of that touching and not guilty of all other allegations, and sentenced him to confinement for 30 days and to be dismissed.

On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva. The Air Force CCA rejected the challenges, finding that assault consummated by a battery is a lesser included offense (LIO) and also finding that:

the military judge, at the request of the Defense and with the concurrence of the Government, found Appellant guilty of a specification that differed slightly from that alleged, we must consider whether this was permissible. We conclude that the Defense’s submission of the modified specification constituted a request for a minor change and, with the concurrence of the Government, it was permissible for the military judge to accept this change. . . .

Even if we concluded this was a major change, the change would still be permissible. Not only did Appellant fail to object to the change, he proposed it.

United States v. Honea, No. 38905, slip op. at 10 (A.F. Ct. Crim. App. Feb. 15, 2017).

CAAF is reviewing both of those findings.

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CAAF will hear oral argument in the Coast Guard case of United States v. Harpole, No.17-0171/CG (CAAFlog case page), on Wednesday, December 6, 2017, at 9:30 a.m.

The case involves statements made by the appellant to a military victim advocate regarding the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. 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”?

The third granted issue was not briefed and was resolved by United States v. Bailey, __ M.J. __ (C.A.A.F. Nov. 29, 2017) (CAAFlog case page).

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CAAF will hear oral argument in the Air Force case of United States v. Chisum, No.17-0199/AF (CAAFlog case page), on Tuesday, December 5, 2017, after the argument in Katso. A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege):

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

The scope of Mil. R. Evid. 513 has been a hot topic recently (see posts categorized here). Congress ordered modification of the rule the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here). But those modifications are not at issue in this case because it was tried before they took effect.

Precisely what is at issue, however, is hard to tell because both of Chisum’s briefs are sealed, and the Air Force Appellate Government Division’s brief is heavily redacted; out of 47 numbered pages, 19 are totally redacted and 5 are partially redacted. The only brief that isn’t redacted is an amicus brief filed by the victims-rights group Protect Our Defenders in support of the Appellate Government Division that argues that the privilege trumps any constitutional rights of the accused (but that the conviction should be affirmed nevertheless).

What we do know about the case, however, is that a special court-martial composed of officer members convicted Senior Airman Chisum was of a single specification of wrongful use of cocaine on a single occasion, and sentenced him to confinement for 3 months, reduction to E-1, forfeiture of $1031.00 pay per month for 3 months, and a bad-conduct discharge. The convening authority approved only 49 days of the adjudged confinement.

The mental health records at issue belong to two prosecution witnesses who testified about using drugs with Chisum. The Air Force CCA observed that “the credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.” United States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016) (discussed here). But the CCA concluded:

Based upon our review of the mental health records at issue in this case, we are convinced that any error in failing to provide any portion of those records to the Defense was harmless beyond a reasonable doubt. The Defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records, and, after considering the entirety of the trial, the additional information contained in the records would not have changed the substance or effectiveness of their cross-examination or defense theory.

Chisum, 75 M.J. at 950. This seemed to be an entirely ordinary conclusion, except that:

On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court.

Chisum, 75 M.J. at 946 n.3. A CCA obtaining and reviewing mental health records not obtained at trial is rather extraordinary.

Those records, however, produced so willingly then and discussed so casually in the CCA’s published decision, are now guarded so carefully that it’s impossible to determine what CAAF is going to focus on during tomorrow’s argument. This is despite the fact that the witnesses – who seem otherwise entirely unrelated to Chisum – are identified only by initials.

The Air Force Government Appellate Division’s brief, however, gives a hint of what the court might discuss.

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CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No.17-0326/AF (CAAFlog case page), on Tuesday, December 5, 2017, at 9:30 a.m. This is the second certification to CAAF in this case. Previously, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF held that expert testimony did not violate Katso’s constitutional right to confront the witnesses against him. Now, CAAF will review whether the Air Force CCA erred in giving Katso 365 days of credit against the adjudged sentence to confinement as a remedy for the Air Force failing to conduct a confinement review hearing after the CCA issued its original decision in the case (a decision that was reversed in CAAF’s prior review).

I outlined the procedural history of this case and the CCA’s decision granting the credit in this post.

The Judge Advocate General of the Air Force certified three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

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CAAF will hear oral argument in the certified Army case of United States v. Simpson, No. 17-0329/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m., after the argument in RobinsonThe Judge Advocate General of the Army certified a single issue challenging the Army CCA’s reversal of Simpson’s conviction for larceny:

Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills.

Simpson’s frauds amounted to over $30,000. He ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.

On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim.

The Manual for Courts-Martial explains that:

Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them. Such use to obtain money or a negotiable instrument (e.g., withdrawing cash from an automated teller or a cash advance from a bank) is usually a larceny of money from the entity presenting the money or a negotiable instrument.

MCM, Part IV, ¶ 46.c.(1)(i)(vi). In recent years CAAF applied this understanding and the common law of larceny (on which Article 121 is based) to hold that using someone else’s debit card is larceny from either the financial institution operating the account or the merchants who accept the card, and not a larceny from the card account holder even though the account holder might suffer a consequence from the offense. United States v. Williams, 75 M.J. 129 (C.A.A.F. Feb. 23, 2016) (CAAFlog case page); United States v. Endsley, 74 M.J. 216 (C.A.A.F. Jan 14, 2015) (summ. disp.) (discussed here).

Simpson presents a practically-identical set of facts, except that the case involves electronic account information instead of an actual debit card.

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CAAF will hear oral argument in the Army case of United States v. Robinson, No. 17-0231/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m. The case challenges convictions of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The appellant was convicted by a general court-martial composed of members with enlisted representation, and was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement).

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

Specialist (E-4) Robinson attended a party at the off-base residence of another specialist. Many were in attendance, including other specialists and also junior enlisted soldiers. One of the other specialists was Specialist VM, who was drinking at the party but left because she felt uncomfortable as the only female present. Gov’t Div. Br. at 4. VM drove herself back to the barracks and while nobody stopped her from driving, one of the other partygoers followed her and then returned to the party and reported that she made it home safely. Gov’t Div. Br. at 5.

At trial VM testified that after returning to her barracks room she vomited, quickly washed, undressed, put a trash can next to her bed, and fell asleep. She testified that her next memory was of Robinson on top of her having sex with her. Her next memory after that was waking up later in the day.

Robinson testified in his own defense and told a different story. Well, he tried to. Citing Mil. R. Evid. 412, the military judge prohibited Robinson from testifying that he and VM had previously discussed having sex, prohibited Robinson’s defense counsel from calling other witnesses to testify about flirtatious activity they observed between VM and Robinson, prohibited Robinson’s defense counsel from asking VM about that prior flirtatious activity, and rejected a question from a member directed at a friend of both Robinson and VM that asked: “From what you know of SPC [VM], did she ever display interest towards SPC Robinson?” App. Br. at 8-9 (quoting record).

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CAAF will hear oral argument in the Army case of United States v. Acevedo, No. 17-0224/AR (CAAFlog case page), on Tuesday, November 28, 2017, after the argument in Jerkins, on a single issue:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

The alleged kidnapping occurred after Acevedo, AM, and others were drinking at an off-base bar. AM was 19 years-old at the time, and she wanted to leave the bar with a civilian (who she eventually married). Acevedo and a Sergeant didn’t allow AM to leave the bar with the civilian. Instead, they insisted on calling a cab to take AM back to base. AM got into the cab, Acevedo followed, Acevedo gave the driver his address, and the cab took them to Acevedo’s apartment where Acevedo and AM had sex. The following morning Acevedo gave AM $20 to pay for a cab ride back to base and told her to keep the encounter secret. Later, when he was questioned by law enforcement, Acevedo falsely denied that AM went to his residence that night.

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