Earlier this month CAAF granted review of two search and seizure issues in the Air Force case of United States v. Eppes:
No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. 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 issues:
I. WHETHER THE SEARCH OF APPELLANT’S PERSONAL BAGS EXCEEDED THE SCOPE OF THE SEARCH AUTHORIZATION WHERE THE AGENT REQUESTED AUTHORITY TO SEARCH APPELLANT’S PERSON, PERSONAL BAGS, AND AUTOMOBILE, BUT THE MILITARY MAGISTRATE AUTHORIZED ONLY THE SEARCH OF APPELLANT’S PERSON AND AUTOMOBILE AND DID NOT AUTHORIZE THE SEARCH OF APPELLANT’S PERSONAL BAGS.
II. WHETHER APPELLANT’S RIGHT TO FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT WAS VIOLATED WHEN THERE WAS NO PROBABLE CAUSE FOR THE 7 DECEMBER 2012 WARRANT.
Briefs will be filed under Rule 25.
The Air Force CCA’s opinion is available here. The appellant is an Air Force Captain who was convicted of various offenses primarily involving travel claim fraud. The CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination is supported by the evidence of appellant’s abuse of his official position (Issue II).
CAAF also denied two notable petitions.
First, CAAF denied further review of the Air Force CCA’s opinion that granted a Government Article 62 appeal in United States v. Lutcza, 76 M.J. 698, No. 2016-13 (A.F. Ct. Crim. App. Jan. 18, 2017) (link to slip op.).
Lutcza consented to a search of his cell phone but later revoked that consent. Before the revocation, however, investigators made a copy of the phone’s data. The copy was searched after revocation of consent, revealing incriminating evidence. But the military judge suppressed the evidence, finding that the accused retained a reasonable expectation of privacy in the copy of the data and relying in part on United States v. Dease, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page) (reasonable expectation of privacy in voluntarily-produced urine sample). The CCA reversed, concluding:
Unlike Dease, where the search (i.e., the urinalysis) was performed after consent was withdrawn, in Appellee’s case the search (i.e., the extraction of data using the UFED Touch) occurred during the period of consent—indeed, with Appellee’s participation. SA BS’s later review of the copied information previously obtained was not a search for Fourth Amendment purposes because, unlike the cell phone itself, the copy of the data always belonged to AFOSI, not Appellee, and Appellee had no reasonable expectation of privacy in it.
Lutcza, __ M.J. at __, slip op. at 7-8. The CCA’s opinion doesn’t distinguish between the seizure and the search of the cell phone data (making the copy was likely merely a seizure, with the actual search occurring later), and it bases its ultimate conclusion on numerous civilian cases (see slip op. at 5-6). But Mil. R. Evid. 314(e)(3) – which permits withdrawal of consent to a search at any time and which was the basis of CAAF’s holding in Dease – is a military-specific rule that would likely apply if the making of a copy of the data was merely a seizure and not an actual search. CAAF, however, won’t answer that question now.
Finally, on June 22, CAAF denied review of an Air Force Appellate Government Division petition for reconsideration of the court’s opinion that found an appearance of unlawful command influence and reversed the convictions in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page):
No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 76 M.J. 242 C.A.A.F. 2017), and the motion filed by Protect Our Defenders to file an amicuscurie brief out of time in support of Appellee’s petition for reconsideration, it is ordered that said motion filed by Protect Our Defenders to file an amicus curiae brief out of time is hereby denied, and said petition for reconsideration is hereby denied.
Considering that CAAF was unanimously and obviously troubled by the pressure exerted on Lieutenant General Franklin as he performed his duties as convening authority in Boyce (though it was deeply divided on the remedy under the facts of this case) it’s hard to know who exactly Protect Our Defenders was trying to defend with its support of the Appellate Government Division’s petition for reconsideration.
In the Air Force case of United States v. Ortiz, 76 M.J. 189 (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), CAAF found no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. An extension of time to file a cert. petition in Ortiz was granted until June 9, 2017 (noted here).
Ortiz was a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), also an Air Force case, which raised similar issues, was resolved on mootness grounds and is now the subject of a petition for certiorari (discussed here).
Over the past few days CAAF summarily affirmed 116 cases in light of its decision in Ortiz.
Of those 116 cases, two are from the Air Force and 114 are from the Army.
That’s not all of the trailers, however, as a small number of additional cases raising this issue are still out there (including a few that were argued this term but not yet decided.
Last week CAAF denied a petition for extraordinary relief filed by Master Sergeant Timothy Hennis (U.S. Army Ret.), who is one of only five military death row inmates (though a potential sixth – Witt – is pending a sentence rehearing):
No. 17-0099/AR. In Re Timothy B. Hennis. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus or other appropriate writ, and Petitioner’s motion to stay proceedings of the United States Army Court of Criminal Appeals pending petition for extraordinary writ, it is ordered that said motion is hereby denied, and said petition is hereby denied without prejudice to raising the issues asserted during the course of normal appellate review.
The petition is available here and includes the assertion that:
the actions of the Judge Advocate General of the Army (Army JAG), Deputy Judge Advocate General (DJAG), and Chief Judges of the Army Court of Criminal Appeals (Army Court) create an appearance the deck is stacked against the petitioner during the ongoing review of his death sentence.
Pet. at 7.
Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted. After the acquittal Hennis elected to remain in the military on the retired list and, in 2006, he was recalled to active duty and a general court-martial convicted him and sentenced him to death. The Army CCA affirmed the sentence two months ago. United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (discussed here).
In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF granted review of two issues in Dalmazzi:
I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.
II. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.
CAAF also granted review of Dalmazzi-type issues in 44 trailer cases. Additionally, CAAF accepted an amicus brief from the Military Commissions Defense Organization and granted the organization 10 minutes of oral argument time (discussed here).
But last week CAAF rescinded that grant of argument time to amicus because it found an issue that has the potential to render the claim in Dalmazzi moot:
No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:
WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.
The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016. It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.
While this new discovery may resolve the issue in Dalmazzi, the trailer cases (which involve other judges and later decisions) will remain.
Having solved CAAF’s dismissal of the petition for review in Rivera, we can now speculate about this denial of an extension of time for the Judge Advocate General of the Navy to certify a Government appeal, from Friday’s daily journal:
No. 17-0034/NA. U.S. v. Richard A. Latour. CCA 201600114. Notice is hereby given that a motion for an enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and motion to stay the trial proceedings were filed under Rule 30 on this 21st day of October, 2016. On consideration thereof, it is ordered that said motions are hereby denied.
In United States v. Latour, 75 M.J. 723 (N.M. Ct. Crim. App, Jul 12, 2016) (discussed here), a three-judge panel of the NMCCA rejected a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.
Yesterday, in this post, I noted CAAF’s dismissal of a petition for lack of jurisdiction. I speculated that the absence of jurisdiction was caused by the appellant and his counsel missing the petition deadline.
My speculation was wrong. The pleadings (discussed below) reveal that the deadline wasn’t missed. Rather, prior to petitioning CAAF, the appellant withdrew his appeal.
Update: As discussed in this post, AF appellate defense did not miss the deadline to petition CAAF in this case.
Last Thursday, October 20th, CAAF dismissed a petition for grant of review in an Air Force case:
No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649. 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 dismissed for lack of jurisdiction.
The petition was filed on May 2nd:
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Monday, May 2, 2016
Petitions for Grant of Review Filed
No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649.
And the AFCCA’s decision is dated February 18th: United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016). I covered the CCA’s opinion in this post.
May 2 was the 74th day after February 18.
Article 67 provides a 60-day time period for a service member to petition CAAF for review. That time period is jurisdictional, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), but may be extended by a timely reconsideration by a CCA, United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010). Once the 60 days passes, however, a CCA can’t restore it with untimely reconsideration. United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page).
In LaBella the appellant and his detailed Air Force appellate defense counsel didn’t file a CAAF petition and CAAF rejected an attempted rescue-mission by the AFCCA. That ended LaBella’s direct appeal but he and his (replacement) military counsel sought extraordinary relief from the AFCCA, were denied, and then missed the deadline to file at CAAF.
Rivera looks like another Air Force case of a missed deadline.
In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case and it dismissed LaBella’s petition as untimely filed.
LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.
LaBella then filed a writ-appeal petition at CAAF. However, as discussed here, that petition looked to be untimely. It was filed on September 7 (62 days after July 7), while the deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision. See C.A.A.F. R. 19(e) (2016).
Now we know that it was untimely.
Two days ago, CAAF dismissed the petition (in response to a Government motion):
No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees. CCA 37679. On consideration of Appellee’s motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant’s motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee’s motion to dismiss the writ-appeal petition is hereby granted, and Appellant’s motion for leave to withdraw the writ-appeal petition is hereby denied as moot.
Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).
In the wake of its blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF this week summarily remanded three other cases in which it granted review of issues involving the use of propensity evidence in sex cases:
No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).
No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).
No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).
Still remaining on CAAF’s docket is the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (certification noted here) (CCA’s decision discussed here). Fetrow involves propensity evidence used in a child sex case (Mil. R. Evid. 414) that the CCA found was not eligible for use under the rule.
In United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), CAAF held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea, saving the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct.
On Monday CAAF applied Rapert to summarily affirm in another case:
No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. On consideration of the granted issue, __M.J.__ (Daily Journal January 21, 2016), the briefs of the parties, and in view of United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.
The Army CCA’s opinion is available here and reveals that (like the appellant in Rapert) the appellant was convicted of communicating a threat in violation of Article 134.
The issue in Rapert involved application of the Supreme Court’s recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001, 2012 (2015), in which the Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Two of CAAF’s authored opinions so far this term address this issue: Rapert and United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).
We’re awaiting a decision in a third such case that was argued in February: United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).
In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.
Judge Ryan has recused herself from the case:
Notice of Recusal and Designation
Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264. Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).
Recusals are rare at CAAF. I’m only aware of a few in recent history:
- Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
- Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
- The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).
CAAF’s docket for last week has two interesting entries.
First, the court granted review of an Army case:
No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. 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 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR THE SPECIFICATION OF THE ADDITIONAL CHARGE IN THAT APPELLANT’S COMMUNICATIONS DO NOT CONSTITUTE “INDECENT LANGUAGE.”
Briefs will be filed under Rule 25.
The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to email@example.com
Next CAAF docketed a writ-appeal from what I assume is an alleged victim:
No. 16-0398/MC. EV, Appellant v. E.H. Robinson, Jr., Lieutenant Colonel, U.S. Marine Corps, Military Judge, Appellee and David A. Martinez, Real Party In Interest. 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) on this date.
Last month, in this post, I reviewed the 4-4 en banc decision of the NMCCA on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015).
Last week the Judge Advocate General of the Navy certified the case to CAAF:
No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:
WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?
WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?
WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE’S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?
IF A MEMBER’S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?
Last month, in this post, I discussed a pair of petitions for extraordinary relief filed at CAAF in which the Air Force Government Appellate Division (appearing as the United States) asked the court for an order directing the Air Force Court of Criminal Appeals to conduct an in camera review of appellate exhibits prior to allowing appellate counsel to view them.
Since that post, three additional such petitions were filed.
CAAF denied two of the petitions yesterday:
No. 16-0251/AF. United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Jerry C. Harrison, Real Party in Interest. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that said petition is hereby denied.
No. 16-0270/AF. United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Marcus A. Mancini, Real Party in Interest. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that said petition is hereby denied.
Update: On February 11 CAAF denied the other three petitions.