CAAFlog » Argument Recaps

I’ve been working through some of the oral argument audio from this term that I didn’t get to listen to over the past few weeks, and I came to an interesting exchange between Judge Ryan and the Government’s counsel in Center for Constitutional Rights, et al. v. United States and Colonel Lind, No. 12-8027/AR. One of the issues in that case is contemporaneous access to the briefs and pleadings, with the Government insisting that the petitioners utilize the FOIA process. Judge Ryan noted that CAAF provides access to the briefs in cases it grants, even though there is no requirement that it do so. She characterized this as a common-sense solution to something that might not be a full-fledged Constitutional problem. She also repeatedly asked the Government’s counsel why similar common-sense measures couldn’t be employed at the trial level, without requiring the full FOIA process.

The exchange made me realize that by making the briefs of the parties available on its website, CAAF enables a significant amount of analysis and commentary that otherwise wouldn’t be possible. (Or should it be “analysis” and commentary?). If this blog required waiting for a FOIA response, or working from documents obtained from unofficial sources, we would have much less content.

In my argument preview of United States v. Wilkins, No. 11-0486/NA, I predicted that the court would ask about last term’s opinion in United States v. Rauscher, 71 M.J. 225, No. 12-0172/NA (C.A.A.F. 2012). It took less than four minutes from the beginning of the recording for the court to get to that question, as it tried to pin down the Appellate Defense Counsel who seemed to have an answer for every question.

On brief, the Appellate Defense Counsel argued that the improper charge in this case was like charging “larceny by unlawfully striking a victim. In such a case, even if one takes it as true that the defendant unlawfully struck his victim, the defendant is still not guilty of larceny.” During oral argument, the court seemed very sympathetic to this reasoning, with repeated references to a “legal impossibility” in the charge at issue (that alleged as a sexual act something that wasn’t – under the law at the time – a sexual act). Rauscher had radically different facts, and outside of the early mention seemed to get little attention.

As the argument progressed, the court turned its attention to prejudice, and the Appellate Defense Counsel advanced a surprisingly sensible argument: At trial, the Defense may have tailored its case to the bad (and I’m being charitable here) charging decision of the Government. This included making certain admissions at trial because they believed the Appellant couldn’t be convicted of the charge at issue. And not convicted he was, as the trial judge entered a finding of not guilty, but then permitted instruction on the “lesser-included offense.” This essentially, according to the Appellate Defense Counsel, allowed the Government to change the charged offense after the presentation of evidence, and while the trial judge could have relabeled the charge or amended the specification, he didn’t. Rather, he entered a finding of not guilty. That matters, says the Appellate Defense Counsel.

After only slightly more than half the allotted time, the argument shifted to the Government, and Government Counsel made the sort of ends-justify-the-means case that rarely flies these days:

Appellant walked into court accused of penetrating the anus of an incapacitated victim. He left court convicted of penetrating the anus of an incapacitated victim. There’s no due process violation in that scenario.

Argument audio at 12:30. He then argued that the offense of conviction (abusive sexual contact) is a LIO of the charged offense (aggravated sexual assault) except, he conceded, not under the facts of this case. My notes from the argument have many references to the “he walked into court charged with” theory, and I got the feeling that the Government believes that once the charge sheet alleged that the Appellant “plac[ed] his fingers or another object in the anus of” the victim, then the Appellant could properly be convicted of any offense arising from that act, be it a sexual act, sexual contact, an assault, maltreatment, fraternization, sodomy, or a general disorder. Of course, the Medina, Miller, and Jones line of cases makes clear that this isn’t how the law works.

On prejudice, Government Counsel argued that the element of sexual contact was essentially uncontroverted. However, as argued by Appellate Defense Counsel, this is because the Defense advanced a theory of consent that may have been predicated on the Government’s theory of the case as embodied in the charging decision. But the Government Counsel didn’t (though could have) argue that the Trial Defense Counsel sandbagged this issue. Perhaps (presumably, I’d say) the Defense saw the problem with the language of the charge. However, rather than raise it at the trial level, with a motion to dismiss for failure to state an offense, the Defense went marching on. I’ve previously lamented (with some significant dissent) CAAF’s willingness to overlook such things. I hope this isn’t a similar case.

Still, there was one part of this argument that troubled me. Repeatedly, Judge Ryan questioned the Appellate Defense Counsel about the matter of waiver of the issue of a defective specification, but-for the fact that this is a pre-Jones case. Counsel agreed that the issue would have been waived. However, I’m pretty convinced that McMurrin, Girouard, and Humphries make it clear that where there is no objection at trial to a defective specification, the error is forfeited but not waived. So I’m not sure what Judge Ryan was trying to say.

On balance, after reading the briefs I saw this case as involving a question of CAAF’s willingness to view a particular specification liberally. But after argument, I see it as involving a question of CAAF’s willingness to view the word specification liberally. In this case, the Government charged a specified offense but the Appellant was convicted of a substantially different offense. Presumably, the requirement of Rule for Courts-Martial 307(c)(3) that “a specification is a plain, concise, and definite statement of the essential facts constituting the offense charged” means something.

Well, we’ll see.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap

In my argument preview of United States v. Datavs, No. 12-5001/AF, I predicted that this argument would “mark a lively beginning to a lively term,” and the argument didn’t disappoint. The case involves allegations of ineffective assistance of counsel that has the Government rushing to the defense of the Trial Defense Counsel, and the Appellate Defense Counsel struggling with the lack of power steering on the proverbial bus, as they try to drive it back and forth over their brethren at the trial level.

Early questioning from the court wondered whether a trial defense counsel’s performance becomes deficient when a cross-examination “blows up in their face” because the witness gives testimony very different from what was anticipated. The Government counsel disagreed with that characterization of the cross-examination in this case. The argument then changes course as the Government counsel argued (quite effectively I thought) that none of the experts – neither the Government expert who testified at trial nor the Defense expert who provided a post-trial report – could give a conclusive opinion about whether the anal intercourse that occurred was definitively consensual or definitively nonconsensual; the pivotal issue in this case. Chief Judge Baker asked what, if anything, would have been different in the cross-examination of the Government’s expert had the Defense had an expert consultant, and the Government counsel responded that very little would have been different, since the Defense got the Government expert to admit on cross-examination that the victim’s injuries could have been sustained by consensual anal intercourse.

But eventually the argument returned to the question of the effectiveness of a cross-examination, and a key point emerged: How important is the question of whether the Defense conducted an “effective” cross-examination of a Government expert? The Government’s counsel argued that it “is a very key factor in this case.” Argument audio at 15:35. But this quickly painted him into a corner when he was asked if the Appellee should prevail if the court found that the cross-examination was ineffective. He tried to shift the topic to prejudice, but the court kept pushing on the question of the Trial Defense Counsels’ performance since that’s the issue that the Government certified (it having won on the prejudice prong at the CCA). Ultimately, the Government highlighted the other preparatory efforts undertaken by the Trial Defense Counsel as evidence of their legal (though perhaps not practical) effectiveness in this case. Unfortunately, the importance of an “effective cross-examination” by defense counsel in an analysis of whether the counsel’s performance was deficient seemed unresolved at the conclusion of the Government’s argument.

The Government counsel then waived rebuttal argument and it was the Appellee’s turn. His counsel began his argument with a bang: “The Defense’s attorneys in this case were wholly unprepared, wholly uneducated, on a crucial element of this case related to the sexual assault examination, and as a result of them being unprepared, they were unable to meet the Government’s case…” Argument audio at 23:00. The Appellee’s position quickly clarified to be that the Trial Defense Counsel were constitutionally required to have sought expert assistance from the beginning of this case, based on their lack of experience and training. But the Appellee’s counsel was confronted with the fact that the Trial Defense Counsel submitted affidavits that their decision to forgo an expert was a strategic move as part of a deal to limit the testimony of the Government’s expert. Addressing this, the Appellee’s counsel fired both barrels:

Appellate Defense Counsel: Your Honor, I don’t believe that that statement in their affidavit is supported by the record-

Judge Ryan: So they’re lying in their affidavit.

Appellate Defense Counsel: I’m not saying their lying Your Honor. I don’t believe it’s supported by the record…

Argument audio at 25:25. So the argument is that the Trial Defense Counsel didn’t lie about their strategy, they just swore to something that is unsupported by the facts. This theme continued through the balance of the Appellee’s argument, as Appellate Defense Counsel scoffed at many decisions of the Trial Defense Counsel as explained in their affidavits. However the court (to the relief of trial defense counsel everywhere, I’m sure) didn’t seem inclined to take this bait.

As the argument continued, the Appellate Defense Counsel might have felt skepticism in the air, because he made what I consider to be a dramatic change of course: “I’m not saying that they had to have an expert in this case…” Argument audio 34:55. This was soon followed by another concession: “and the fact is that this case can be looked at in a number of different ways…” Argument audio at 36:00. So long as it benefits the Appellee, of course.

The argument ended with a brief discussion of the panel members who were also victim advocates, and the Appellee’s counsel conceded that this issue was waived at trial. He had to answer one last tongue-in-cheek question of whether these victim advocates were trained by the Government’s expert, and then the courtroom fell uncomfortably silent for a moment. Cue up Peggy Lee.

Chief Judge Baker then asked the Government’s counsel, yet again, if he wanted rebuttal. He declined.

Case Links:
Blog post: CCA oral argument recap
AFCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Cross-Appellant’s brief
Cross-Appellee’s (Government) brief
Blog Post: Argument preview
Oral argument audio
Blog Post: Argument recap

Here is a link to Professor Steve Vladeck’s thoughts on the US v. Ali oral argument.  Here and here are our prior discussions of the argument, including our guest blogger, which Prof. Vladeck very nicely links to.  A snippet from his comments:

But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn’t declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.

I must say that I found the prediction that the case is going to SCOTUS a bold prediction.  We await a decision.  Any predictions on when it comes out?

I think lost in the oral argument in the Ali v. US case this past week, here, is the fact that the constitutionality of civilian UCMJ jurisdiction in times of contingency operations does not hinge on courts being open and actual hostilities being ongoing.  Several other considerations inform the “least possible power” inquiry that Toth v. Quarles, 350 U.S. 11 (1955) used to limit congressional power to subject civilians to courts-martial:

  • Is the civilian accompanying armed forces in an area of actual hostilities?
  • Is the accused in the field with these forces?
  • Are courts in the United States open?
  • Does the military have the logistical capability to send the accused to the jurisdiction of a US court?
  • Could Congress have given the military the power to try the accused in a civilian court?

Thus, there are conceivably circumstances under the current Art. 2(a)(10), UCMJ that an accused could be in a situation where an individual is in an area of hostilities, where US courts are open, but the military is unable to bring the accused into a Court’s jurisdiction.  For example, if Mr. Ali had been taken to NJP proceedings during an intense battle at a remote location in the mountains of Afghanistan on December 12, 2001, where transportation out of the combat zone was impractical, too dangerous, or just unavailable, this would be a very different case.

But the facts of the case are that Mr. Ali was court-martialed at Camp Victory many days after being removed from his FOB and when celebrities, service members (whether on leave or in custody for a future court-martial), and civilians being charged under MEJA were moving in and out of Camp Victory with ease.   Does the constitution allow this civilian to be deprived of the rights he has in an Art. III court under these circumstnaces?  That’s the issue.

[Disclaimer:  Since our amici brief argues Art. 2(a)(10) is unconstitutional as applied to Mr. Ali, you know my answer to this issue]

As Judge Stucky said during a question-and-answer session following oral argument at the University of Washington Law School yesterday, 99 percent of the cases CAAF hears involve active-duty service members who have been convicted at a court-martial; U.S. v. Ali, which concerns the court-martial of an Iraqi/Canadian interpreter serving with the Army in Iraq as an independent contractor, is part of the 1 percent that doesn’t. But as such, it was perhaps the most interesting, unique, and entertaining argument the Court will hear this term.

A packed house of law students, professors, judge advocates from the Pacific Northwest, and a few prominent others were treated to a very hot bench, as LTC Peter Kageleiry Jr., counsel for the appellant, was peppered with questions before he could even get to his opening.

The issues being argued were:

(I) Whether the, military judge erred in ruling that the court had jurisdiction to try appellant and thereby violated the due process clause of the fifth and, sixth amendments by refusing to dismiss the charges and specifications; and

(II) Whether the court-martial had jurisdiction over the appellant pursuant to Article 2 (a) (10), Uniform Code of Military Justice.

Both sides’ arguments were greeted with some skepticism by the judges. LTC Kageleiry asked the Court to apply the “Toth Doctrine” (United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)) to find that this court-martial did not have jurisdiction over the appellant, whom it claimed was not a member of the Armed Forces. But the judges questioned whether Toth applied noting that Toth involved a discharged American service member in the U.S., whereas this appellant was a non-citizen whose crimes occurred outside the U.S. And anyway, Art. 2(a)(10), UCMJ, which is at issue here, is different than Art. 2(a)(11). That led to a discussion about what constitutes “war,” and whether there is a limit to the least possible power argument. Counsel for appellant made the argument that the war powers clause was not in play because there was no declared war, which led to a colorfully sarcastic question (and probably the line of the argument) from Judge Stucky: “Well, what were we doing over there [in Iraq] then? And in Korea? Dancing down the primrose path?”

CPT Chad Fisher, the Government counsel, was grilled, for his part, on the Government’s decision to base its argument that jurisdiction to court-martial Mr. Ali was based solely on the “Make Rules” clause of the Constitution, while conceding that the “War Powers” clause should not be considered at all as a basis for court-martial jurisdiction. His argument was that, by nature of accompanying the Armed Forces in Iraq, the appellant virtually became a member of the land and naval forces. This drew questions from the judges designed to delineate the difference between being in the armed forces and merely accompanying them. This line of questioning culminated in Chief Judge Baker making the point that, if the Government had wanted Mr. Ali to be considered a member of the land and naval forces, it could easily have drafted a contract saying so. After all, he was there working for an independent contractor. The Government’s argument, while well-spoken and cogent, was hurt by the reluctance to use “war powers” as a viable means for jurisdiction, a point the judges went back to more than once.

The amicus argument, ably presented by U-Dub 3L student (and Coast Guard LT) Jeff Barnum, had no such problem. As such, Barnum’s well-crafted argument, which supported the Government, came across as most reasonable. Barnum, in fact, based his argument supporting jurisdiction on the war powers clause, stating that hostilities, whether contingency or otherwise, trigger the War Powers clause. He then identified a four-part test that he crafted for limiting this principle, arguing that Ali fell strongly within most of them.

1. Proximity to hostilities;
2. Civilian’s role within the military unit (e.g. appellant is a 10; Stephen Colbert would be a 0).
3. Extent to which offense impacts mission (e.g. writing a bad check = 0; sabotage = 10; Barnum estimated this fell in the middle)
4. Extent to which court-martial maintains good order and discipline on the field of battle .

On rebuttal, the appellant argued that this is a Government test case, but also admitted that, at this point, this case is unique; there are no others like it.

In the end, regardless of which way the Court falls, this has the feel of being that rare military case that may pique the interest of the U.S. Supreme Court. Therefore, CAAF’s opinion will no doubt generate much discussion and interest.

Last week’s oral argument in United States v. McClain, No. 12-0099/AR, involved a straightforward issue that arises from a complicated fact pattern. The question before the court was:

Whether the evidence is legally sufficient to support appellant’s conviction of possessing child pornography.

However, the facts involve a sort of interpretative technological dance to determine that the appellant possessed child pornography.

The appellant was convicted, contrary to his pleas and by a military judge sitting as a general court-martial, of one specification each of possession of child pornography and distribution of visual depictions of minors engaging in sexually explicit conduct to internet users, in violation of Article 134, UCMJ. He was sentenced to confinement for 14 months (reduced to 13 months by the convening authority), reduction to E-1, and a BCD. However, the ACCA found the evidence supporting the distribution specification legally and factually insufficient, stating: “We are not convinced beyond a reasonable doubt appellant maintained the specific intent to place child pornography in a shared, peer-to-peer software program and make that child pornography available for viewing or downloading by other Limewire users.” United States v. McClain, No. 20090446, Slip op. at 4 (A. Ct. Crim. App., August 19, 2011) (memorandum opinion). The court reassessed the sentence, and affirmed it as approved by the convening authority.

At trial, an NCIS Special Agent testified that while he was conducting an undercover investigation for personnel distributing child pornography over the internet, he attempted to download what appeared to be child pornography from what was later identified as the appellant’s computer (via the peer-to-peer file sharing program Limewire). However, he was unable to download any of the files that the appellant was later charged with possessing. Instead, he downloaded files from other Limewire users that had the same titles, file type, file size, and “SHA1 value” as the files on the appellant’s computer. Subsequently, the appellant admitted, in a sworn statement, to downloading child pornography.

Unfortunately for the government, the Special Agent testified as a lay witness, and the court-martial heard no formal expert testimony about the meaning of a “SHA1 value” (which is an algorithm used to create a digital fingerprint – also known as a “hash” – of a digital file, and is often used in child pornography cases). This created two arguments for the appellant before CAAF: (1) the Special Agent’s testimony was actually improper expert testimony, and (2) the Special Agent never viewed the actual files on the appellant’s computer, and therefor couldn’t confirm that he knew what they were or that they could even be viewed by the appellant.

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CAAF heard oral argument last week in the Article 62 appeal case of United States v. Cooper, No. 12-6004/AR. Sergeant Cooper is charged with various sexual offenses involving his step-daughter, and denies his guilt. During a pretrial session, the trial military judge found that the accused’s statements were taken in violation of Article 31(b), and ordered them suppressed. The government appealed to the Army CCA, which found the military judge’s findings and conclusions “ambiguous and incomplete on predicate issues relative to rights warnings,” and remanded for “clarification and action.” The government sought reconsideration by the CCA, which was denied. The Army JAG then certified the following issues to CAAF:

(I) Whether the military judge and the Army Court of Criminal Appeals erred in applying Michigan v. Mosley, 423 U.S. 96 (1975) as opposed to Oregon v. Bradshaw, 462 U.S. 1039 (1983) and Edwards v. Arizona, 451 U.S. 477 (1981) to the facts of this case.

(II) Whether the military judge erred in finding the Accused’s statement was involuntarily made.

(III) Whether the military judge erred in suppressing the accused’s entire typewritten statement based on a second alleged violation of his right to remain silent.

In short (and unsurprisingly), the government believes that the statements made by the accused are admissible. But the certification is about the legal test to be applied, since the CCA set-aside the military judge’s ruling suppressing the statements. In other words, the military judge suppressed statements, the government appealed, the CCA set-aside the military judge’s ruling, and then the government continued its appeals because it didn’t like the CCA’s reasoning. Who says appellate litigation isn’t fun…

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CAAF heard oral argument on Monday in the case of United States v. Easton, No. 12-0053/AR, which presents the following issue:

Whether the Army court erred in holding the appellant’s trial did not violate his constitutional right against double jeopardy because jeopardy did not attach and even if it did, manifest necessity justified the convening authority’s decision to withdraw charges.

The appellant, a First Lieutenant in the Army assigned as a physicians assistant, twice missed movement by design, when his unit deployed to Iraq in March 2007. He was quickly charged with two specifications of violation of Article 87, and one specification of conduct unbecoming in violation of Article 133. Arraignment occurred in June and trial was set for July 2007. In the interim, the parties went to Iraq to take videotaped depositions of two deployed witnesses who were deemed unavailable for trial. However, after returning they discovered that the videotapes contained no video and incomprehensible audio. Despite both sides knowing this, the accused entered pleas, made forum election (officer members), the members were sworn, the court-martial was assembled, and voir dire of the members was conducted. The court then recessed for two days. During that recess, the convening authority withdrew and dismissed the charges without prejudice, and without written explanation.

In March 2008 the appellant was again charged with two specifications of missing movement by design in violation of Article 87, as well as one specification of disobeying a lawful order and one specification of adultery in violation of Articles 90 and 134. He made motions for dismissal due to improper withdrawal and double jeopardy, both of which were denied. He was then convicted, by the military judge sitting as a general court-martial, of the two violations of Article 87, and sentenced to confinement for 18 months and a dismissal. The convening authority reduced the confinement to ten months in clemency.

The Army CCA, in a published opinion, found that there was “a manifest necessity for the convening authority’s actions,” based upon the unusable deposition recordings. United States v. Easton, 70 M.J. 507, 512 (A. Ct. Crim. App., 2011). The court wrote:

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CAAF heard oral argument last week in the case of United States v. Hayes, No. 12-0090/AF (not to be confused with United States v. Hayes, No. 11-5003/NA, __ M.J. __ (CAAF, 2012)), which presents the following seemingly-innocuous question:

Whether the military judge erred in denying appellant’s motion to dismiss for failure to state an offense, where the specification omitted reference to a required element under state law for a finding of guilty for wrongful consumption of alcohol while under age 21.

But the case and the issues it raises are hardly innocuous.

The appellant was convicted in 2009, contrary to his pleas, by a general court-martial composed of officer members, of one specification of dereliction of duty by willfully failing to refrain from drinking alcohol while under the age of 21, and six specifications of wrongfully distributing controlled substances (marijuana and cocaine). He was also convicted of one specification, in accordance with his plea, of wrongfully using marijuana. He was sentenced to a bad-conduct discharge, confinement for two years, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged.

Here’s where it gets interesting. In the dereliction specification the government alleged that the appellant was derelict in the performance of his duties “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” During the Article 32 investigation, several witnesses testified that they saw the under-21 appellant consume alcohol at various locations in or near Las Vegas, Nevada. The government then argued that it intended to prove dereliction because Nevada Revised Statute 202.020 imposed a duty on the appellant to not consume alcohol, in a public place, if under 21, and that the Luxor Hotel in Las Vegas (where the appellant was seen drinking) was a public place. And prove it they did.

So the appellant was convicted of violating Article 92 for drinking when under 21, not because an order or rule prohibits it (apparently – and amazingly – the Air Force had no such order), but because it is, the government maintains, a custom of the service to follow state laws. However, the appellant argues that the specification is deficient because it does not actually allege that his consumption of alcohol while under the age of 21 was illegal under Nevada state law (note: I don’t see the verbatim text of the specification in the briefs; if someone has it, please post it in the comments). Update: The specification is in the CCA’s opinion and reads:

That [the appellant] who knew of his duties at or near Las Vegas, Nevada from on or about 1 June 2008, to on or about 30 September 2008, was derelict in the performance of those duties in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

If this is starting to make your skin crawl, some history is in order. I give you the words of Chief Justice William H. Rehnquist:

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CAAF heard oral argument in United States v. Humphries, No. 10-5004/AF, on February 13, 2012. Humphries is a unique case with some history. Senior Airman (E-4) Humphries was convicted in 2009 by a panel with enlisted members of sodomy and adultery in violation of Articles 125 and 134. He was sentenced to reduction to the lowest enlisted grade and a bad-conduct discharge. The convening authority approved the sentence, but in 2010 the AFCAA, after finding no prejudicial error,  determined that Humphries “deserves punishment but given the consensual nature of his crimes, an unsuspended punitive discharge is inappropriately severe.” The AFCCA then set-aside the convening authority’s action and returned the case for reconsideration by the CA with instructions that he approve a sentence no greater than a suspended bad-conduct discharge and a reduction to E-1. Additionally, in its action, the CCA (despite determining that the findings are correct in law and fact) expressly declined to affirm the findings.

The government, unsurprisingly, requested en banc reconsideration, which the CCA denied. The government then sought and obtained certification to CAAF on the following question:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

CAAF heard oral argument in January 2011, but in February 2011 it returned the case to the AFCCA because the lower court “acted on the sentence without acting on the findings. This has resulted in having a case before us for review that does not have a complete decision on all findings and the sentence by the Court of Criminal Appeals as required by Article 67(c).”

In August 2011 the AFCCA doubled-down, issuing a decision affirming the findings as correct in law and fact and again setting-aside the CA’s action with the same appropriateness-based limit on the sentence on remand. The Judge Advocate General of the Air Force then re-certified the above-specified issue.

Perhaps not believing this case to be complicated enough at this point, the defense (led by our own Colonel Sullivan) petitioned for a cross-appeal, and CAAF granted review and ordered briefs on a second issue:

Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.

This grant came in mid-December, at about the same time as CAAF granted the second round of Fosler-trailers (for which a witty characterization is still pending).

So, going into the oral argument last week, the government was the appellant on the certified issue, and was the cross-appellee on the granted issue. To keep things simpler, the government will be the “government,” and Humphries the “appellee” from here on.

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Tuesday’s oral argument before CAAF in United States v. Weeks, No. 11-0526/AF, presented the following issue:

Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing.

In response to early questions from the court, the appellant’s counsel agreed that a writing was made in this case (the checks appear in the record of trial), but argued that it was not “falsely made” because it was a genuine making of a false instrument. The checks in this case were not fake checks, but were made by someone who was not authorized to draw from the account. Moreover, in the signature block, the checks were not falsely inscribed with the name of the appellant’s relative who owned the account, but rather said “by retail services, for [the appellant].”

The appellant’s counsel insisted that the crime could have been charged under multiple articles, including Article 121 (larceny) or Article 123a (making, etc., without sufficient funds), but that it is not a forgery in violation of Article 123 because there is no false writing. Further, the appellant’s counsel stated that the law of this matter is clear, but was just improperly applied by the trial military judge when accepting the appellant’s plea.

However, Judge Erdmann and Senior Judge Cox seized on the appellant’s false representation – that he had the authority to draw from the account – as the falsity in the making of the instrument. During discussion of this point, Judge Erdmann disclosed that he thought, from the briefs, that this was a case about electronic writings, not about the falsity of paper writings. I thought the same in my argument preview.

The government’s counsel began his argument by stating that the appellant admitted to sufficient facts to support the finding of guilty, so long as the court resolves the legal question of whether the checks were falsely made in the affirmative. He then stated that the checks were “not genuine” because they purported that the appellant was the owner of, or an authorized party to, the account, which was false. However, he was asked to square this position with the MCM’s discussion that excepts a genuine making of a false instrument from a forgery, and had a difficult time doing so. Ultimately, the court returned to the question of what on the instrument was false, and the government’s counsel returned to the answer of the appellant’s purported ownership of the account.

At one point during the argument, the government’s counsel cited a case that was identified in supplemental citations of authority that the government submitted the day before the argument. This prompted the following statement from Judge Ryan, which begins at 27:40 of the argument audio:

Can I just take this moment to ask about the supplemental citations of authority because – this isn’t really just directed at you, it’s just a general comment for the world – we keep on getting supplemental statements of authority which, in my understanding, in regular federal practice, is for new authority that’s been recently discovered, and we are continually getting the citations of authority the day of or the day prior to arguments, for cases from 1976 and much longer ago, can you explain why that is?

Later, in an exchange that vividly illustrates (what has been described to me by one appellate practitioner as) the need for an integrated “government” position in military justice matters, Judge Stucky asked (at 31:45) if it’s the government’s position that the court should “simply disregard the manual” with respect to this issue. The government’s counsel admitted that this is indeed the government’s position.

When the appellant’s counsel returned for rebuttal, he was immediately questioned by Judge Erdmann about the plain language of Article 123 that addresses “any person who falsely makes any part of any writing which, if genuine, would impose a legal obligation.” He asked why that doesn’t apply in this case, despite the discussion in the MCM; how can someone genuinely make a false instrument. The appellant’s counsel answered that because the appellant stole money that wasn’t his, but he didn’t purport to be someone else while he did it, the writing was a genuinely-made falsehood.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Blog post: Argument Preview
Oral argument audio
Blog post: Argument Recap

In my preview of Tuesday’s oral argument at CAAF in United States v. Dease, Jr., No. 12-6001/AF, I predicted that the oral argument would focus on the law of the granted issue which is:

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

And indeed it did, as the court seemed intent on identifying a narrow rule to address situations where an individual consents to seizure and analysis of a bodily fluid, but later revokes that consent.

The argument began with the appellant’s counsel discussing the right to withdraw consent at any time under Military Rule of Evidence 314. He also cited CAAF itself for the principle that consent is a waiver of the right to demand that the government agents obtain a warrant to justify the search.

The court immediately wondered where this ends – what happens when the consent is revoked at some non-specific time after the seizure takes place? Must the government then take affirmative steps to stop further analysis? The appellant’s counsel answered this in the affirmative, arguing that once the consent is withdrawn the government must stop testing, but he conceded that testing that occurred before consent was withdrawn would be admissible at trial. In the words of Judge Stucky (at 3:25 of the argument audio): “the cat’s out of the bag once it’s tested.”

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Last week’s oral argument in United States v. Nealy, No. 11-0615/AR, addressed whether an accused can providently plead to an offense that is not a lesser-included offense of a charged offense where there is no pre-trial agreement and the trial military judge does not explain the law of lesser-included offenses (and the corresponding procedural rights that accused could demand).

The appellant’s counsel began her argument with two theories of error: (1) that the military judge failed to ensure the appellant understood that he was pleading to an uncharged offense, and (2) that the court-martial lacked jurisdiction. She also argued that the issue is not one of notice (Miller and Jones were decided before this case was tried), but one of knowing and voluntary waiver of constitutional due process rights. One interesting fact discussed early in the argument was that while the accused pleaded guilty to provoking speech under Article 117, the government proceeded to trial on the merits of the charged offense of communicating a threat under Article 134. She used this fact to argue that there was no constructive referral of the Article 117 offense, because the convening authority not only did not agree to the change, but also directed trial on the original offense.

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During the oral argument at CAAF on Monday 12 December in United States v. Watson, No. 11-0523/MC, the court considered whether the appellant’s plea to fraudulent enlistment was provident.

The appellant’s counsel discussed two different fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule; and (2) the initially-disqualified, need-a-waiver rule. While he argued that the appellant’s plea was improvident under either rule, because he set up a matter inconsistent with the plea, he urged the court to adopt the absolute-bar-to-enlistment rule. This rule would require a prosecution for fraudulent enlistment involve a misrepresentation of a fact so disqualifying that, were it disclosed, the applicant would be absolutely-barred from enlistment. In the words of the appellant’s counsel at the beginning of the argument:

The very purpose of the statute is not simply to punish those who misrepresented themselves during the enlistment process, but rather to punish those who receive pay and allowances … from the government that they otherwise were not entitled to receive – would never have received under any circumstances. Argument audio at 2:00.

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