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CAAF denied SGT Bergdahl’s second writ-appeal on Friday, with the following order:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority and United States, Appellees. CCA 20150463.  On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

I discussed this filing here. All of our Bergdahl coverage is available here.

The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.

Relying on its recent Confrontation Clause decision in United States v. Katso, __ M.J. __ (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), on Monday CAAF summarily affirmed the Army CCA’s decision in Bennett:

No. 14-0658/AR. U.S. v. Corey J. Bennett. CCA 20111107.  On consideration of the granted issue, 74 M.J. 46 (C.A.A.F. 2014), and in view of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), we conclude that the findings of the United States Army Court of Criminal Appeals regarding the expert’s review of Prosecution Exhibit 7 were not clearly erroneous and compel the conclusion that the expert undertook a sufficient degree of independent analysis to render her opinion admissible even if it was based in part on inadmissible information.  Accordingly, it is ordered that the decision of the United States Court of Criminal Appeals is hereby affirmed.*

* OHLSON, Judge (concurring in the result):

While I adhere to my dissenting opinion laid out in the factually distinguishable case of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), I concur in the result because I do not find the Court of Criminal Appeals’ findings on the granted issue to be clearly erroneous.

CAAF’s decision avoids a sub-issue of corroboration of the appellant’s confession to use of marijuana. I mentioned the grant of review in this post.

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

In United States v. Blouin, __ M.J. __ (C.A.A.F. Jun. 25, 2015) (CAAFlog case page), CAAF narrowly reversed the appellant’s pleas of guilty to possession of child pornography where the images involved non-nude depictions of minors. Writing for the majority, Judge Erdmann implicitly rejected the holding of United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II), and seemingly held that a lascivious exhibition of the genitals or pubic area must include an unclothed depiction of that area. However, this holding is a little unclear, since CAAF merely found the plea insufficient to sustain the conviction. But in doing so, CAAF reversed the published decision of the Army CCA that had affirmed the plea.

A trailer to Blouin has the potential to provide additional clarity. In United States v. Gould, No. 20120727 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.), the Army CCA found that the appellant’s conviction for production of child pornography was legally sufficient, relying on its own decision in Blouin that CAAF later reversed. CAAF granted review in Gould in January (grant discussed here). But last week, the court summarily remanded the case for further consideration in light of Blouin:

No. 15-0129/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727.  On further consideration of the granted issue, __ M.J.__ (Daily Journal January 21, 2015), and in light of United States v.Blouin, 74 M.J. __ (C.A.A.F. 2015), the decision of the United States Army Court of Criminal Appeals as to Charge II and Specification 1 thereunder and the sentence is reversed.  The decision of that court as to the remaining charge and specification is affirmed.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Blouin.

The CCA’s opinion doesn’t provide much detail about the images at issue in Gould, but it does explain that the appellant was convicted contrary to his plea of not guilty. If the case involves only non-nude images alleged to constitute lascivious exhibition of the genitals or pubic area, Gould should provide further clarity on whether such images are legally sufficient to constitute child pornography.

CAAF’s daily journal was just updated to show that on Tuesday the court denied two significant petitions for extraordinary writs.

The first was a petition from an alleged victim in an ongoing court-martial. I discussed the petition in a post titled: An alleged victim seeks extraordinary relief from CAAF.

No. 15-0606/MC. CB v. Moira Modzelewski, Captain, U.S. Navy, in her official capacity as Military Judge, Appellee, and Donald Foster, Lance Corporal, U.S. Marine Corps, Real Party in Interest. CCA 201500058. On consideration of the writ-appeal petition, Appellant’s motion for a stay of trial court proceedings, and the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time, the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time is hereby granted; Appellant’s motion for a stay of trial court proceedings is hereby denied; and Appellant’s writ-appeal petition is hereby denied.

The second was a petition from Sergeant Bergdahl that I discussed in a post titled: Bergdahl seeks extraordinary relief.

No. 15-0616/AR. Robert B. Bergdahl v. Mark R. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority. CCA20150383.  On consideration of the writ-appeal petition, and the motions filed by Alfredo N. Foster, Jr., Esq., and Franklin D. Rosenblatt, Esq., to appear pro hac vice, said motions are granted. The writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

Notably, in the Bergdahl petition, CAAF granted the government an extension of time to file an answer to the petition, even though the government requested the extension after the deadline to file the answer had already passed (discussed here).

I noted the petition for review in the Marine Corps case United States v. Sterling, No. 15-0510/MC, in this post. The case asserts a violation of the Religious Freedom Restoration Act (RFRA) in the application of a military order.

Friend of CAAFlog Don Rehkoph forwards the Government’s answer to the petition for grant of review (available here), as well as an amicus brief he authored on behalf of the Military Religious Freedom Foundation and in support of neither party (available here). Both briefs argue that CAAF should deny review.

CAAF’s daily journal shows the following entry for May 29, 2015:

No. 15-0606/MC. CB, Appellant v. Moira Modzelewski, Captain, U.S. Navy, In her official capacity as Military Judge, and Donald Foster, Lance Corporal U.S. Marine Corps, Real Party in Interest, Appellees.CCA 201500058.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b), together with Appellant’s motion for a stay proceedings, on this date. The Judge Advocate General is directed to appoint counsel to represent the Appellee military judge. The answer is due no later than June 8, 2015.

Captain Modzelewski is a military judge who previously served as Chief Judge of the Navy-Marine Corps Court of Criminal Appeals.

After noting this entry early last week, I submitted a FOIA request to the Navy seeking copies of the pleadings in the case. I have not received a response to that FOIA request. However, I have received a copy of the writ-appeal petition filed at CAAF (without the sealed appendix). The petition is available here.

CB is an alleged victim of sexual assault. Her alleged assailant is a junior enlisted Marine. The petition challenges the military judge’s ruling on M.R.E. 412 issues. Specifically:

Ms. CB respectfully requests that this Court set aside the Trial Court’s rulings made under M.R.E. 4122 and M.R.E. 608(c), and direct the Trial Court to exclude any evidence of previous or subsequent sexual assault incidents unrelated to the present case from being introduced at trial. When the Military Judge ordered Ms. CB to reveal her private Restricted Reports and other reports of sexual assault and allowed these to be utilized as extrinsic impeachment evidence at trial, this violated the M.R.E., constitutional due process, and the right to be treated with fairness and respect for the dignity and privacy of the victim, thus requiring the Trial Court’s ruling be overruled.

Pet. at 4. The petition also notes the following significant finding of fact by the military judge:

At this Motion Session, the Military Judge stated that there was “significant indicia” of falsity regarding Ms. CB’s prior sexual assault incidents.

Pet. at 13.

Read more »

CAAF’s daily journal shows the following entry from Tuesday, June 9:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  On consideration of Appellant’s motion for an expedited review, it is ordered that said motion is hereby denied.*

* BAKER, Chief Judge (dissenting):

Given the nature of the issue presented, I would grant oral argument immediately.

Cooley is a case involving application of the speedy trial rule in Article 10, UCMJ. Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014), dismissing numerous charges for violation of Cooley’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court. I discussed the CCA’s opinion in a post titled: The Coast Guard CCA raises Article 10 from the dead.

At trial in late 2013, Cooley entered conditional guilty pleas to numerous offenses, including attempting a lewd act with a child. The adjudged sentence included confinement for seven years, but in accordance with a pretrial agreement the convening authority suspended all confinement in excess of fifty months. A year later the CCA dismissed all of the charges (some with prejudice, others without). But the Judge Advocate General of the Coast Guard certified the case to CAAF on February 23, 2015 (discussed here), with two issues focusing on the question of prejudice for the speedy trial violation. CAAF then granted review of a third issue addressing the substantial information rule (discussed here).

CAAF’s caselaw holds that decisions of the service courts are not self-executing and that they remain “inchoate” during the time for certification by a judge advocate general. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997). However,

After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.

Id. at 362. The CCA’s decision should result in the release of Cooley from post-trial confinement. However, Chief Judge Baker’s dissent implies that he is being held in pretrial confinement, based at least in part on the offenses that the CCA ordered dismissed with prejudice.

Putting the entire term on one page made me realize the length of CAAF’s deliberations in United States v. Katso, No. 14-5008/AF (CAAFlog case page) (argued Oct. 7, 2014): 245 days and counting.

Last term I thought it notable that CAAF took 183 days from argument to decision in United States v. Elespuru, 73 M.J. 326 (C.A.A.F. Jul. 15, 2014) (CAAFlog case page). Elespuru had the longest time to decision of last term. The time to decision in Katso is already two months longer.

In the 2012 term (two terms ago), the longest time to decision was in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page), at 225 days. Katso beats that too.

For the current term, after Katso, the next oldest case still pending a decision by CAAF is the still-undecided capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page) (argued Nov. 18, 2014), at 203 days. A decided case takes third place: United States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), at 169 days.

In my argument preview in Katso, I concluded that if CAAF is forced to decide the case on confrontation grounds then its decision will be a significant one. Significant or not, it is certainly suspenseful.

The Religious Freedom Restoration Act (RFRA), as modified by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000bb – 2000bb-4, was the central theme in the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, (2014). Attorney Paul Clement represented the private parties who sought an exemption from the contraception coverage requirements of the Affordable Care Act. Mr. Clement is now part of an effort to apply RFRA to military orders, appearing pro hac vice on behalf of a Marine Corps appellant who is seeking CAAF review of her court-martial conviction for an orders violation.

The case is United States v. Sterling, No. 15-0510/MC. The NMCCA’s decision is available here. The supplement to the petition for grant of review by CAAF is available here.

CAAF’s daily journal for April 9 reflects this entry in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 13-0522/AF. U.S. v. David J.A. Gutierrez. CCA 37913.  Appellant’s petition for reconsideration of the Court’s opinion, 74 M.J. 61 (C.A.A.F. 2015), is denied.

In this post last September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014), that reversed a conviction for forcible rape in violation of Article 120(a) (2006) on the basis that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse. I concluded that post with the following analysis:

The Government could take this case to CAAF, where that court can review a CCA’s action on factual sufficiency to determine if “the CCA clearly acted without regard to a legal standard or otherwise abused its discretion.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). And the Judge Advocate General of the Air Force hasn’t been shy about certifying cases to CAAF over the past year (see Part V of the 2013 End o’ Term Stats). But Judge Weber’s opinion is focused on the facts of the case and doesn’t involve the sort of “purely equitable factors” or “simpl[e] disagree[ment] that certain conduct— clearly proscribed by an unambiguous statute— should be criminal” that CAAF has found constitutes an abuse of discretion.Nerad, 60 M.J. at 147. So I think any such appeal faces very long odds.

Perhaps unsurprisingly, the Judge Advocate General of the Air Force certified the case to CAAF.

But the following entry from CAAF’s daily journal for yesterday is totally unsurprising:

Appeals – Summary Dispositions

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 338422. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Dec. 19, 2014)), and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding Appellee’s rape conviction, and any lesser offense, factually insufficient. Accordingly, it is ordered that the certified questions are answered in the negative and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014, and what a story it was.

First, we noticed media reports about the military judge’s ruling, in a post titled: Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)

Then we noted the scheduled oral argument at the Air Force CCA.

The Air Force CCA’s decision provided plenty of details, as the court denied the Government appeal of the dismissal of rape charges that was ordered after the Government refused to produce witness notes. The CCA’s opinion revealed that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

That got the case onto our Top Ten list, but it wasn’t over as the the Air Force JAG certified the case to CAAF.

And then CAAF ordered the Government to re-brief the case, to address “possible controlling or adverse authority.”

Now, in an summary decision issued yesterday, CAAF affirms the military judge and the Air Force court:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08.  On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Jan. 5, 2015)), and the briefs of the parties and amicus curiae, we conclude that the military judge did not abuse his discretion in dismissing all charges and specifications with prejudice following the Government’s refusal to comply with the military judge’s order to produce trial counsel’s witness interview notes for an in camera inspection. “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings,” and “[p]roper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014). Because a judge has broad discretion and a range of choices in crafting a remedy to cure discovery violations and ensure a fair trial, this Court will not reverse so long as his or her decision remains within that range. See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In this case, the military judge’s decision, as affirmed by the Court of Criminal Appeals, was within that range. Accordingly, it is ordered that the certified questions are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

Yesterday CAAF summarily affirmed the decisions of the Army CCA in seven trailer cases to United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan 6, 2015) (CAAFlog case page). The court denied relief to each appellant, just as it denied relief to Phillips.

Rather than republish the details, you can read them on CAAF’s daily journal here.