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.
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In this post last September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct.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.
Back in September, in this post, Sam analyzed the Coast Guard CCA’s opinion in United States v. Riesbeck, No. 1374 (C.G. Ct. Crim. App. Aug. 5, 2014) (link to slip op.). The CCA affirmed a trial-stage ruling that the appellant’s counsel waived a challenge to the court-martial panel’s composition (the panel appeared to be stacked with female members) by failing to object soon enough. In his analysis, Sam noted that “[RCM] 912(b)(3) provides that the issue is not waived where there is a violation of RCM 502(a)(1).”
On Thursday, December 11, CAAF took the following action in the case that shows that Sam’s analysis was right on:
No. 15-0074/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of Appellant’s petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, we conclude that the issue of improper member selection was not waived because of the exception contained in Rule for Courts-Martial (RCM) 912(b)(3) to the timeliness requirement of RCM912(b)(1). On its face, RCM 912(b)(3) provides an exception to waiver where the objection is made on the basis of an allegation that the convening authority selected members in violation of RCM502(a)(1) for reasons other than those listed in Article 25(d)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012): age, education, training, experience, length of service, and judicial temperament. Furthermore, improper member selection can constitute unlawful command influence, an issue that cannot be waived. United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001). Because the exception of RCM 912(b)(3) should have applied, the question remains whether Appellant was deprived of a fair trial by an impartial panel. Accordingly, it is ordered that said petition is hereby granted on the following issue:
WAS APPELLANT DEPRIVED OF A FAIR TRIAL BY AN IMPARTIAL PANEL?
The decision of the United States Coast Guard Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Coast Guard for remand to the Court of Criminal Appeals for further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.
CAAF also granted review in two Air Force cases last week.
Three new CAAF grants: Personal jurisdiction, ultimate offense doctrine (trailer), and an invalid convening authority’s action
CAAF granted review in three cases on December 3rd, summarily reversing the CCA in one.
First, CAAF granted review in United States v. Nettles, No. 14-0754/AF. I discussed the AFCCA’s opinion in this case in a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider the appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his actions in permitting a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:
Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.
This issue was considered by the AFCCA, but it was rejected based on the court’s conclusion that the appellant never received a discharge certificate. The CCA’s opinion gives what might be a preview of the appellant’s argument to CAAF:
The appellant argues that ARPC’s 25 September 2012 order was self-executing, or to put it differently, that ARPC issued a prospective discharge certificate. To satisfy the first prong of discharge case law (that the discharge certificate must be delivered to be effective), he argues that ARPC’s 14 March 2012 notice that a discharge would occur in the future was in effect the “delivery” of the discharge certificate that would not be generated for another six months.
United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (emphasis added) (link to unpub. op.).
CAAF’s second grant was in another trailer to the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page):
No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER IT WAS AN ABUSE OF DISCRETION FOR THE MILITARY JUDGE TO ACCEPT A PLEA OF GUILTY FOR WILLFUL VIOLATION OF A SUPERIOR COMMISSIONED OFFICER IN THE SPECIFICATION OF CHARGE I DESPITE THE ULTIMATE OFFENSE DOCTRINE AND THE MILITARY JUDGE’S APPLYING THE MAXIMUM PUNISHMENT FOR BREAKING RESTRICTION UNDER ARTICLE 134, UCMJ.
No briefs will be filed under Rule 25.
This is the sixth such trailer case. I discussed the other five in this post.
Finally, CAAF granted and summarily reversed in a Marine Corps case involving a second convening authority’s action issued after the record of trial was forwarded to the CCA for appellate review:
No. 15-0077/MC. U.S. v. Matthew T. Engler. CCA 201300365. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the record of trial, the Court notes a number of errors in the post-trial processing of this case and decision of the lower court: (1) the civilian defense counsel advised the staff judge advocate that he would not submit clemency matters, but then submitted clemency matters several weeks after the convening authority took his initial action; (2) the convening authority purported to take a second action after he forwarded the record to the lower court and thereby lost jurisdiction in the case; (3) the convening authority failed to include the clemency matters in the record; (4) the lower court failed to order the government to produce the missing clemency submission; and (5) the lower court found a legal basis for a conclusion of no prejudice in the second action despite that action being a legal nullity. Accordingly, it is ordered that said petition is hereby granted on the following issue:
CAN A MILITARY APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY’S ACTION TO NEGATE PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL CLEMENCY PROCESSING?
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the convening authority’s actions are set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2012) shall apply.
The NMCCA’s opinion is available here.
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.
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.
CAAF orders a fact-finding hearing in a case involving the Air Force’s use of cadets as confidential informants
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.
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:
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.
CAAF affirms the AFCCA’s denial of a Government petition for a writ to stop the deposition of an alleged victim of sexual assault
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.”
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
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., 73 M.J. 237 (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)).