CAAFlog » Article 62 Appeals

CAAF decided the interlocutory Air Force case of United States v. Pugh, __ M.J. __, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.

Judge Sparks writes for the unanimous court.

A general court-martial composed of officer members convicted Major (O-4) Pugh of:

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

United States v. Pugh, No. 2016-11, slip op. at 2 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.

After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then granted review of a single issue:

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

Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.

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In an unpublished opinion in a prosecution appeal under Article 62, a three-judge panel of the Army CCA finds that “when the government concedes an issue [of law] at trial and the military judge accepts the concession, then the government cannot complain to this court that the military judge erred.” United States v. Suarez, No. 20170366, slip op. at 7 (A. Ct. Crim. App. Sep 27, 2017) (link to slip op.).

At stake is the admission of six images of suspected child pornography discovered on the accused’s cell phone after it was searched pursuant to an authorization. The device was protected by a passcode and the investigators asked the accused for that passcode. So the defense moved to suppress. See, generally, United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

Responding to the defense motion, the prosecutors “conceded in their initial brief to the military judge that the accused’s providing a passcode to a CID agent was testimonial and incriminating.” Slip op. at 4. These were significant concessions, because “in conceding the passcode was incriminating, the government necessarily conceded the request for the incriminating response was an interrogation.” Slip op. at 5. And because it was an interrogation, the questioning implicated the accused’s rights under the 5th Amendment and Article 31(b). So the military judge suppressed the images.

The prosecution appealed, “mak[ing] numerous arguments as to why the military judge erred.” Slip op. at 3.

But the panel doesn’t consider those arguments. Rather, it holds that “the substantive issue of this appeal was waived by the government at trial.” Slip op. at 8.

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

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

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

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

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

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

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

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

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

Reply. Br. at 6.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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In United States v. Bruno, No. 2017-03 (A.F. Ct. Crim. App. Aug. 23, 2017) (link to slip op.), a three-judge panel of the Air Force CCA reverses a military judge’s ruling suppressing the results of a urinalysis, agreeing with the prosecution that:

Appellee’s second urinalysis was taken in accordance with a standing inspection order issued by the installation commander and minor deviations in the execution of the policy did not mandate suppression.

Slip op. at 2.

The accused – Second Lieutenant (O-1) Bruno – tested positive for methamphetamine on a random urinalysis, and then tested positive a second time on a follow-up urinalysis. The military judge suppressed the results of the second urinalysis after finding that it was the product of an interrogation by AFOSI (that was also suppressed). But the CCA finds that the second urinalysis was the product of a standing order that required follow-up urinalysis any time a member tests positive on a random urinalysis (a Bickel policy, named after United States v. Bickel, 30 M.J. 277, 287 (C.M.A. 1990), in which the court observed that “it was quite rational for Bickel’s company commander to determine whether any member of his unit who had tested positive on one occasion–and so was indicated by the test to be unfit for military duty–had corrected his substandard condition”).

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CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

Chief Judge Stucky writes for the court joined by all but Judge Ryan, who dissents.

Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.

But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.

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On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

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In the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), CAAF is considering the impact of investigators questioning a military suspect, after he invoked his right to remain silent and requested an attorney, in order to gain access to the suspect’s cell phone for a search. The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017. It is one of just three remaining undecided cases argued during the October 2016 Term.

Back in June, in this post, I noted a pair of Air Force CCA decisions – one published and the other involving a Government appeal of a suppression ruling – that held that a “request for the passcode d[oes] not constitute interrogation in violation of the Fifth Amendment.” United States v. Robinson, 76 M.J. 663, 671, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).

The accused in Blatney (the interlocutory case) petitioned CAAF for review on June 14. Last Thursday CAAF granted review:

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be file.

The post-trial appellant in Robinson petitioned CAAF for review on July 12, 2017. That petition is still pending.

CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

CAAF decided the certified Army case of United States v. Gurczynski, 76 M.J. 381, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

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

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

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

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

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Back in March the Air Force CCA granted a Government appeal under Article 62 in United States v. Pugh, No. 2016-11 (Mar. 10, 2017) (link to slip op.). The case involves an Air Force major who was convicted of:

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

Slip op. at 2. AFI 90-507 (available here) (link corrected) is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced the Major to a dismissal and the court-martial was adjourned. Nineteen days later:

the military judge granted the defense motion to dismiss the Additional Charge and its Specification. In so doing, he issued a six-page ruling. The military judge concluded that the specification did allege an offense and gave fair notice to Appellee. However, the military judge then held that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The military judge then dismissed the Additional Charge and its Specification.

Slip op. at 2-3. The military judge had the power to do this because the record had not yet been authenticated. See R.C.M. 905(f).

The prosecution appealed and the Air Force CCA reversed, concluding:

As the military judge found, as fact, that it was possible that a “false positive” could result from manufacturing process defects, purchase of hemp products overseas, or purchase of hemp products over the Internet, it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program. Military jurisprudence has long recognized the “disastrous effects” of illicit drug use by members of the armed forces. Similarly, the critical nature of the drug testing program in the “military’s efforts to ferret out drug abuse and thereby insure [sic] the health and readiness of its members” as well as deter drug abuse is also well-established.

Slip op. at 6 (citations omitted) (marks in original) (emphasis added).

Yesterday CAAF granted review:

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that the petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant’s brief on this issue shall be filed within 20 days of the date of this order. Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief. A reply may be filed by Appellant within 5 days of Appellee’s brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

Article 62 authorizes interlocutory appeals by the prosecution in a court-martial in various situations, including of:

An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

Art. 62(a)(1)(B). It’s a relatively new provision in the Code, having been added by the Military Justice Act of 1983, Pub. L. No. 98-209 (with additional grounds for appeal added in 1996).

Rule for Courts-Martial 908 details procedural steps for such an appeal, but it does not define the term (or perhaps terms) substantial proof of a fact material in the proceeding, leaving the matter up to the appellate court acting on the appeal.

The Judge Advocate General of the Army has a problem with that:

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

WHETHER THE TRIAL COUNSEL’S CERTIFICATION THAT EVIDENCE IS “SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING” IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.

I don’t see an opinion on the Army CCA’s website. Update: a reader forwarded the CCA’s order. It’s available here. The order states, in part:

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

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en bane). In contrast, the plain language of Article 62(a)(l), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria. Although Article 62(a)(2), UCMJ, contains similar timeliness and certification requirements to 18 U.S.C. § 3731, these requirements are listed separate and apart from the jurisdictional basis. Essentially, 18 U.S.C. § 3731 vests the determination of the materiality of the excluded evidence solely with the United States attorney; in this important respect, Article 62, UCMJ, is not analogous. When Congress intends to confer the right to appeal based solely on the certification of a specified officer, it is perfectly capable of making that intention clear in statutory language. Compare 18 U.S.C. § 3731, and Article 67(a)(2), UCMJ, with Article 62(a), UCMJ.

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In United States v. Mangahas, Misc. Dkt. No. 2016-10 (A.F. Ct. Crim. App. Ap. 4., 2017) (link to slip op.), a three judge panel of the Air Force CCA grants a Government appeal and reverses a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment.

The allegation dates back to February 1997, when the accused and the alleged victim were cadets at the United States Coast Guard Academy. The charges were preferred eighteen years later, in October 2015.

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

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

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

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

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

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

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

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

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