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CAAF has declined to intervene in the ongoing Army court-martial of Private Hernandez, in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the Private of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125 due to concern over the application of the defense of mistake of fact as to age. I discussed the Army CCA’s two decisions in the case in this post (where the court ultimately granted the Government a writ of prohibition) and Private Hernandez’s writ-appeal to CAAF in this post. But CAAF’s daily journal for last Wednesday has this entry:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.

On consideration of the writ-appeal petition and motion for stay, it is ordered that said petition is denied without prejudice to Appellant’s right to raise the issues asserted during the normal course of appellate review, and that said motion is denied as moot.

Additionally, CAAF has granted review in another case involving the corroboration rule (last month the court granted review of a corroboration issue in United States v. Adams, 14-0495/AR (discussed here)):

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107. Review granted on the following issue:

Whether the military judge erred by allowing an expert to repeat testimonial hearsay, denying Appellant’s right to confrontation, and if he so erred, whether Appellant’s confession to marijuana use was adequately corroborated.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Bennett is available here. A three judge panel of the CCA considered Appellant’s convictions by a special court-martial composed of officer members, contrary to his pleas of not guilty, of two specifications of unauthorized absence and one specification of wrongful use of marijuana in violation of Articles 86 and 112a, for which he was sentenced to confinement for three months, reduction to E-1, forfeiture of $978.00 pay per month for three months, and a bad-conduct discharge. The panel reversed one of the unauthorized absence convictions “because the government failed to prove that he was absent from the unit alleged.” United States v. Bennett, No. 20111107, slip op. at 2 (A. Ct. Crim. App. Apr. 28, 2014). But then the panel divided sharply over Confrontation Clause issues in the Government’s evidence supporting the drug conviction.

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A few weeks ago, in this post, I wrote about the Army case of Private Hernandez in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the accused of sexual assault of a child and sexual abuse of a child in violation of Article 120b (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125. At issue is CAAF’s divided opinion in United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), where the court found that the affirmative defense of mistake of fact as to age does not apply in a prosecution for non-forcible sodomy in violation of Article 125. Private Hernandez asserted that affirmative defense and the military judge found that it existed, but did not acquit Private Hernandez outright because of Wilson.

So, the Government sought extraordinary relief from the Army CCA in the form of a writ forcing the military judge to make a finding. A three-judge panel rejected the Government effort, but then the court en banc granted the Government a writ of prohibition. Last week Private Hernandez appealed that decision to CAAF:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.  Notice is hereby given that a writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b).

Additionally, on Thursday of last week CAAF granted review of an issue in the certified Air Force case of United States v. Buford. This case is an interlocutory appeal of a military judge’s ruling suppressing the fruits of searches of electronic devices owned by the accused, who is charged with indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134. The military judge suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts (a Facebook page and an email account) accessed through one of those electronic devices. The CCA affirmed suppression of only the third-party sources, reversing the suppression of evidence discovered on the laptop and thumb drive. I discussed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I discussed the certification in this post. While the certified issue questions the military judge’s ruling, CAAF’s grant focuses on the decision of the Air Force CCA that partially reversed the judge’s ruling:

No. 14-6010/AF.  United States, Appellant and Cross-Appellee v. Aaron M. BUFORD, Appellee and Cross-Appellant.  CCA 2013-26.  On consideration of the cross-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 for grant of review is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING A.B. CONSENTED TO LAW ENFORCEMENT’S SEARCH OF THE CENTON THUMB DRIVE AND THE DELL LAPTOP.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedures, no further pleadings will be filed.

We’ve made a few mentions (in posts here and here) about the use of Air Force Adademy cadets as undercover informants for the Air Force Office of Special Investigations. On Monday, CAAF ordered a DuBay (post-trial fact-finding) hearing in a case that appears to involve one such informant:

No. 14-0409/AF.  U.S. v. Stephan H. CLAXTON. CCA 38188. Review granted on the following issue:

WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT UNITED STATES AIR FORCE ACADEMY CADET ERIC THOMAS WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the discovery matter underlying the granted issue.  At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The AFCCA’s opinion in the case is available here. The court did not discuss the informant issue.

Mike mentioned the trial-stage proceedings in this case in this post from 2012, and he provided a link to this Colorado Springs Gazette report about the Article 32 investigation in the case.

USACIL is the United States Army Criminal Investigation Laboratory. It is part of United States Army Criminal Investigation Command (USACIDC) that reports directly to the Provost Marshal General, Headquarters, Department of the Army. See General Order 22, Oct. 16, 2006

United States v. Katso, __ M.J. __, No. 38005 (A.F. Ct. Crim. App. Apr. 11, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jun. 9, 2014) (CAAFlog case page), is a significant Confrontation Clause decision by the Air Force Court of Criminal Appeals. In Katso a three-judge panel of the court led by Chief Judge Roan found that a surrogate DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellee of his constitutional right to confront the examiner who actually conducted the DNA analysis (but was unexpectedly unavailable for trial due to a family emergency). The CCA then split 2-1 to find that error prejudicial, reversing the convictions for aggravated sexual assault, burglary, and unlawful entry, for which the appellee was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. I analyzed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force certified Katso to CAAF with the following issue:

Whether the Air Force Court Of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless.

The DNA analysis was conducted by USACIL, and CAAF’s daily journal for yesterday reveals that the organization wants to be heard in the case:

INTERLOCUTORY ORDERS

No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted.  The brief of amicus curiae will be filed on or before September 10, 2014.

I think it very interesting that CAAF granted a motion to file an amicus brief from an Army command separate from the Army’s Appellate Government Division.

Two months ago, in this post, I noted CAAF’s grant of a marital privilege issue in United States v. Yanez, No. 14-0411/AF. The case involved an assertion that the marital privilege protects the appellant’s possession of sexually explicit images of his own wife (in the  Central Command Area of Responsibility, where possession of such images is prohibited by a general order that the appellant pleaded guilty to violating). The military judge rejected the privilege and the AFCCA affirmed (finding any error to be harmless) in an opinion available here. CAAF granted review to determine whether the judge erred in applying the privilege, and last week the court summarily affirmed the decision of the Air Force court.

CAAF granted review of the Army CCA’s published opinion in United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.), as a companion case to United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). In both cases, CAAF considered whether the military judge committed error by not suppressing statements made by each appellant, who were conspirators in a larceny in Iraq. When CAAF decided Jones, it eliminated the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test, and then applied that test to affirm the conviction and the decision of the Army CCA.

Last Friday, August 8, CAAF summarily affirmed the conviction in Carrasquillo:

No. 14-0261/AR.  U.S. v. Elliot M. CARRASQUILLO.  CCA 20110719.  On further consideration of the granted issue, 73 M.J. 288 (C.A.A.F. 2014), and in view of United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014), we conclude that in light of the facts and circumstances of this case, the military judge did not err in concluding that SPC Ellis was not acting, and could not reasonably be considered by Appellant to be acting, in an official law enforcement or disciplinary capacity in questioning Appellant, and the military judge did not abuse his discretion when he denied the defense’s motion to suppress Appellant’s statement.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

For more details on the facts relating to this issue see my opinion analysis of Jones.

Unfortunately, CAAF’s resolution avoids what I felt was the really interesting issue in this case, namely the fact that, “on three separate occasions during appellant’s trial, the panel heard evidence regarding appellant’s invocation of his rights during the interview with CID.” Carrasquillo, 72 M.J. 850, __, slip op. at 4. The CCA found plain and obvious error but no prejudice on the basis that the error “does not outweigh the overwhelming evidence against appellant.” Id, slip op. at 16. I discussed the CCA’s opinion in a post titled: The right to remain silent when the evidence of guilt is overwhelming.

Back in March, in this post, I wrote about the Air Force CCA’s interlocutory order in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (link to order).

The accused is charged with forcible rape of a then 16-year-old girl – who was a family friend – in March 2012. The girl participated in the Article 32 pretrial investigation but cut short her testimony during cross examination by the Defense. After the case was referred, the Defense asked the judge to order a deposition of the girl and the judge granted the Defense request (and also ordered the Article 32 re-opened to consider the deposition). The Government then sought a writ of mandamus from the Court of Criminal Appeals to stop the deposition. The CCA denied the petition noting in part that “this matter represents a case-specific situation, not a widespread situation likely to recur.” McDowell, order at 8.

The Judge Advocate General of the Air Force then certified the case to CAAF (discussed here).

On Friday, August 8, CAAF summarily affirmed the CCA’s ruling denying the Government petition. Chief Judge Baker writes a separate concurrence, reproduced in full below, in order “to highlight the sui generis nature of this case.”

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I’ve long believed that instructions are the most important part of a trial, and back in April I noted CAAF’s grant in United States v. Wagner, No. 14-0048/AR, as the eighth case of the term involving instructions. But yesterday CAAF summarily affirmed the Army CCA’s decision that found no error in the absence of an instruction to the members on the offenses of wrongful sexual contact and assault consummated by a battery as lesser included offenses of the offense of aggravated sexual assault. The CCA found:

Applied to this case, it is clear that there was no factual dispute as to the differing elements between wrongful sexual contact and assault consummated by a battery. As defined, the two offenses differ only as to the nature of the act committed: wrongful sexual contact requires a sexual contact, UCMJ art. 120(m), whereas battery requires a harmful or offensive touching, UCMJ art. 128. In this case, there was no dispute as to the nature of the act performed—appellant conceded at trial that he engaged in sexual intercourse with DL. Thus, not only was assault consummated by a battery not raised by the evidence (for the same reasons wrongful sexual contact was not raised), but even if it was raised by the evidence, it would still have been improper to instruct upon it. Appellant has no right to a compromise verdict or any instruction that is tantamount to a request for jury nullification. See, e.g., United States v. Thomas, 116 F.3d 606, 615 (2nd Cir. 1997) (“[I]n language originally employed by Judge Learned Hand, the power of juries to ‘nullify’ or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.”). Accordingly, the military judge properly omitted instruction upon this
lesser-included offense.

United States v. Wagner, No. 20111064, slip op. at 18-19 (A.Ct.Crim.App. Jul. 29, 2015) (link to unpub. op.).

The other seven instructions cases of the term are:

  • United States v. Payne, 73 M.J. 19 (C.A.A.F. Jan. 6, 2014) (CAAFlog case page) (affirming after finding improper instructions on the elements to be harmless error).
  • United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan. 15, 2014), recons. den., __ M.J. __ (CAAFlog case page) (reversing due to the judge’s failure to instruct members to disregard improper human lie detector testimony).
  • United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014), pet. for cert. filed, __ S.Ct. __ (Jun. 23, 2014) (CAAFlog case page) (affirming, despite finding significant prosecutorial misconduct, because of the effectiveness of the judge’s curative instructions).
  • United States v. Talkington, 73 M.J. 212 (C.A.A.F. Apr. 7, 2014) (CAAFlog case page) (affirming after holding that sex offender registration is a collateral consequence of the conviction alone and that the military judge may properly instruct the members essentially to disregard it when determining an appropriate sentence).
  • United States v. Davis, 73 M.J. 268 (C.A.A.F. May 23, 2014) (CAAFlog case page) (affirming after finding that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt).
  • United States v. MacDonald, No. 14-0001/AR (CAAFlog case page) (questioning judge’s failure to give requested involuntary intoxication instruction).
  • United States v. Torres, No. 14-0222/AF (post discussing grant) (questioning judge’s failure to give Defense requested instruction on voluntariness (automatism)).

CAAF’s oral argument calendar was updated today, listing the date and case of the first oral argument of the September 2014 Term:

Tuesday, September 9, 2014
9:30 a.m.:

United States v. Ruben Vargas  No. 14-6009/MC
(Appellee) (Appellant)

Counsel for Appellant:  LtCol Richard A. Viczorek, USMCR
——————————– (supplement)
—————————————– (reply)
Counsel for Appellee:  Maj David N. Roberts, USMC (answer)

Case Summary: Special court-martial prosecution for assault consummated by a battery. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

I discussed the NMCCA’s decision in Vargas in a March post titled: The NMCCA finds that Article 62 authorizes appeals of recesses.

The online version of CAAF’s daily journal is usually a full day behind (i.e., today’s update posted yesterday’s activity), so while I normally post the daily journal entry for CAAF grants, we won’t have that until tomorrow at the earliest.

In United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here), CAAF reversed nearly 60 years of military jurisprudence and declared that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” The following term, in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (CAAFlog case page), the court limited the application of Fosler by finding that an accused can plead guilty to a 134 specification that lacks a terminal element because the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But then, in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is made at a contested trial, finding that if the Government does not cure the lack of notice caused by the defective specification during the trial itself then, despite the lack of objection, the defect materially prejudices the accused’s right to notice and the conviction must be set-aside.

I was as surprised as everyone else by Fosler, rather ambivalent about Ballan, and outright hostile to Humphries (writing in The Hazard of Humphries that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal).

But last week, on June 5, CAAF did something nonsensical in the post-Ballan world – it reversed a guilty plea where the inquiry merely involved the wrong terminal element:

No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE IV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence.

I can’t find the CCA’s opinion on its website (an increasingly common problem – are electrons part of the sequester?).

Notably, in Ballan, where the specification contained no terminal element, CAAF concluded:

There was no prejudice to the substantial rights of Appellant; this case, involving a defective specification and a proper plea inquiry, is distinguishable from a contested case involving a defective specification. In cases like this one, any notice issues or potential for prejudice are cured while there is still ample opportunity either for a change in tactics or for the accused to withdraw from the plea completely — not to mention that the military judge must, sua sponte, enter a not guilty plea to the affected charge and specification where he has found a plea improvident. See R.C.M. 910(h)(1) (allowing an accused to withdraw a plea of guilty); R.C.M. 910(h)(2) (requiring the military judge to enter a plea of not guilty when the accused makes statements inconsistent with a guilty plea).

In a contested case, on the other hand, there is no equivalent, timely cure that would necessarily be present in every properly conducted court-martial. In sum, while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone is insufficient to show prejudice to a substantial right.

71 M.J. 28, __, slip op. at 18-19.

So, if an accused pleads guilty to a 134 specification that totally omits the terminal element, that conviction will be affirmed based upon the notice and protections provided by the guilty plea inquiry. However, if the specification states a terminal element, but the plea inquiry discusses a different terminal element, that conviction will be reversed for lack of notice.

Ludicrous.

Two years ago, in the Army case of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), CAAF explained that “[w]here a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” Barberi, slip op. at 2-3.

Barberi involved a contested child pornography trial where six photographs taken by the appellant (of his teenage step-daughter, nude) were admitted into evidence. The defense unsuccessfully argued at trial that none of the images were child pornography. But the Army CCA found that four of the six images were legally and factually insufficient as child pornography, and then affirmed the child pornography conviction by relying on the other two images and the rule that a general verdict may be upheld if it has any sufficient basis. But CAAF reversed after concluding that “we cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” Barberi, slip op. at 11.

18 months later, the Air Force CCA issued a published decision in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), in which it applied a separate test for prejudice atop CAAF’s reasoning in Barberi. As the cite reveals (and our case page discusses), CAAF then granted review of the CCA’s ultimate conclusion (affirming the conviction) and the Air Force JAG cross-certified an issue challenging the CCA’s predicate conclusion (finding certain images insufficient).

A month after CAAF granted review in Piolunek, it granted review in another Air Force case involving essentially the same issue: United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here). And yesterday the Air Force JAG certified essentially the same predicate question:

No. 14-5009/AF.U.S. v. Patrick J. HUEY. CCA38139. 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 ERRED IN FINDING THAT IMAGES 00395505, 00394392, 00395408, 00395454, 00365481, FROM PROSECUTION EXHIBIT 11; THE THIRD AND FOURTH IMAGES ON PAGE 5, THE SECOND IMAGE ON PAGE 7, THE IMAGE ON PAGE 9, THE IMAGE ON PAGE 12, AND THE IMAGE ON PAGE 14 OF PROSECUTION EXHIBIT 14; IMAGE 00180276 IN THE “NON NCMECCP” FOLDER AND IMAGES ON PAGES 11, 14, 29, 31, 41, AND 42 IN THE WORD DOCUMENT TITLED “PE_THUMBNAILS” OF PROSECUTION EXHIBIT 15 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

For a recent discussion of cross-certification, see this post about the cross-cert in Piolunek.

And for the ongoing discussion of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force, see this post.

Pursuant to Article 67, UCMJ, 10 U.S.C. § 867, CAAF’s jurisdiction includes (in part) cases where the court grants review “upon petition of the accused and on good cause shown,” and cases that “the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” The different standards in these provisions create an inherent difference between an accused’s petition for review and a Government appeal in the form of an order from a JAG. But nothing prevents a JAG from ordering CAAF to review an issue for the benefit of an accused and thereby give the accused standing before the court equal to that available to the Government.

However, the Judge Advocate General of the Air Force recently ordered CAAF to review a sizable  number of cases under circumstances that almost exclusively benefit the Government. I discussed these cases in an April post titled: The appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

In that post I also discussed ten other Air Force cases that the JAG didn’t certify but that I felt warranted certification because they raised significant legal issues. Unlike the cases that were certified, the ten uncertified cases involved issues that would benefit the accused service members. And all of those cases remain uncertified (though CAAF did grant review in one of them). Analyzing these cases, I concluded that the JAG’s apparent eagerness to compel CAAF review of issues for the benefit of the prosecution, but not for the defense, creates “an appearance of bias [that] is a threat to the entire military justice system.” I also wrote:

Unfortunately, there’s no easy answer to the growing appearance of bias in the Air Force certification process. A rush of anti-prosecution certifications would just invoke cynicism. So too would the failure to certify pro-prosecution issues strongly deserving of further review (such as the AFCCA’s recent opinion reversing the convictions on confrontation grounds in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (discussed here) (link to slip op.)).

Now CAAF’s daily journal for Monday reveals that the Air Force JAG is continuing this trend:

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. 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 ERRED WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS

I still think that Katso is deserving of review by CAAF (after all, my writeup of the CCA’s opinion is more than 2,100 words long), and certification was the only way the court would get the case. But as deserved as this certification is, it is still part of a disturbing (and disappointing) trend.

The Judge Advocate General of the Air Force certified the following issue statement in United States v. Burns, No. 14-5004/AF:

Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed a miscarriage of justice by reaching its erroneous factual insufficiency conclusion and by relying upon facts not established in the record in finding Appellant’s conviction not factually sufficient.

When that certification appeared on CAAF’s docket I wrote a post titled: Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused). Of the facts of the case I observed:

What could prompt such an emotional issue? Appellee got into an argument, and then he fired a single shot from his pistol into the air near his apartment complex. For this, Appellee was convicted of one specification of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life, in violation of Article 134. He was sentenced to confinement for 35 days, reduction to E-1, and a bad-conduct discharge. On review, the majority of a three-judge panel of the AFCCA determined that:

the Government failed to demonstrate that the appellant’s act of firing a single shot into the air was unsafe to human life in general. The Government’s evidence on this element rested almost entirely upon one witness’s testimony about the act itself along with an aerial photograph depicting that the appellant fired his shot in the midst of a multi-building apartment complex. Under the facts of this case, this is an insufficient basis to conclude that human life was endangered by the appellant’s actions.

United States v. Burns, No. S32084, slip op. at 4 (A.F.Ct.Crim.App. Dec. 18, 2013) (link to slip op.). The court found the conviction factually insufficient but it affirmed a conviction of the lesser-included offense of discharging a firearm through negligence. That offense does not carry with it the possibility of a punitive discharge. So, the CCA affirmed all of the sentence except the bad-conduct discharge.

Is this the miscarriage of justice warranting such a breathless certification to CAAF?

In a short order issued yesterday, CAAF answers my question in the negative, rejects the issue certified by TJAF, and affirms the decision of the AFCCA:

No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 13, 2014), Appellee’s motion to supplement the record, Appellant’s motion to supplement the record, 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 that Appellee’s conviction of the greater offense of willful and wrongful discharge of a firearm under circumstances such as to endanger human life was factually insufficient and in affirming a finding of guilt as to the lesser included offense of negligent discharge of a firearm. Accordingly, it is ordered that the motions to supplement the record are granted, the certified issue is answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

Today’s update to CAAF’s daily journal reveals that yesterday, the court didn’t just summarily reject the certification of the Judge Advocate General of the Air Force in Seton (discussed here), it also summarily rejected the certified issue in McIntyre:

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 18, 2014), Appellee’s motion to supplement the record, and Appellant’s motion to supplement the record, we conclude that the military judge did not abuse his discretion in granting the motion to suppress Appellee’s oral and written statements for lack of corroboration. Accordingly, it is ordered that the motions to supplement the record are granted; the certified issue is answered in the negative; and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

* Chief Judge Baker would have held oral argument before deciding this case

Phil discussed the AFCCA’s decision that affirmed the military judge’s ruling in this post, and I noted the certification in this post.

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.