CAAFlog » CAAF Grants

Military Rule of Evidence 514 is the Victim Advocate-Victim privilege. It protects:

a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

Mil. R. Evid. 514(a). I discussed the rule in this 2012 post, where I wondered if it really exists (considering its irregular promulgation).

But what happens when the accused asserts the privilege? Last week CAAF granted review in a Coast Guard case that raises that question:

Read more »

On Friday CAAF granted review in a Coast Guard case, specifying two issues for review:

No. 17-0208/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

I. WHETHER THE MEMBERS OF APPELLANT’S COURT-MARTIAL PANEL WERE PROPERLY SELECTED.

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL, OR THE APPEARANCE OF A FAIR TRIAL, WHERE A MAJORITY OF THE PANEL MEMBERS WERE FORMER VICTIM ADVOCATES AND THE MILITARY JUDGE DENIED A CHALLENGE FOR CAUSE AGAINST ONE OF THEM.

Briefs will be filed under Rule 25.

We first discussed this case here, when Sam reviewed the Coast Guard CCA’s 2014 decision that found that civilian defense counsel waived the issue of improper panel selection by failing to make a timely objection. But CAAF reversed and remanded for further review (noted here). The CCA then heard oral argument (noted here) and issued a new decision (available here) affirming the findings and sentence.

At the heart of the case is the fact that the appellant was convicted of rape – arising from an encounter during a September 2010 port call in Puerto Vallarta, Mexico – by a panel composed of six women and two men. Of those, five of the women had training as a victim advocate or had assisted women who had complained of sexual assault. Nevertheless, in it’s most recent opinion the CCA concluded that “Appellant has failed to produce sufficient evidence to raise the issue of court stacking.” Slip op. at 9.

Update: While I initially noted five grants of review, I only wrote about four. I eventually realized that I failed in counting to five and now update this post to include the fifth grant (in Bailey).

Some interesting cases recently joined CAAF’s docket, with a certification and five grants of review.

Read more »

On Tuesday CAAF granted review in the following Army case:

No. 17-0231/AR. U.S. v. Torrence A. Robinson. CCA 20140785. 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 issues raised by Appellant:

I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADMIT CONSTITUTIONALLY REQUIRED EVIDENCE UNDER MILITARY RULE OF EVIDENCE 412(b)(1)(C).

II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR THE SPECIFICATION OF CHARGE I, WHICH INVOLVED AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20.

And the following issue specified by the Court:

III. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SPC VM WAS TOO INTOXICATED TO CONSENT TO A SEXUAL ACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (meaning the case was summarily affirmed).

Mil. R. Evid. 412 is the military’s rape shield rule, and it prohibits admission of evidence “offered to prove that any alleged victim engaged in other sexual behavior” (Mil. R. Evid. 412(a)(1)) and evidence “offered to prove any alleged victim’s sexual predisposition” (Mil. R. Evid. 412(a)(2)). The rule does, however, contain exceptions, including for:

[E]vidence the exclusion of which would violate the constitutional rights of the accused.

Mil. R. Evid. 412(b)(1)(C). This exception is the one at issue in this case and it is notable for three reasons. First, there isn’t a bright-line where exclusion of evidence violates an accused’s constitutional rights. Second, the exception is still actually in the rule (while a similar exception in Mil. R. Evid. 513 was ordered removed by Congress in the FY15 NDAA and then was removed by Executive Order 13696). Finally, the exception conflicts with the rule’s procedural requirements in a way that CAAF found constitutionally-problematic in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), but has not been fixed.

CAAF also docketed a writ-appeal in a Navy-Marine Corps case (no opinion is available on the CCA’s website):

No. 17-0315/AF [sic]. Jeremy E. Hassett v. United States. CCA 201600118. 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.

CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. 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 GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. 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 DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT’S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. 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 MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.

In this post I analyzed the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016). The CCA dissected CAAF’s opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 (and, presumably, 414):

First, we note the CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J. at 56-57. As discussed above, while the CAAF found the instruction to be error, the court found it harmless.

Second, we believe the intertwined nature of the conduct in Hills was central to the court’s assessment of prejudice. . . .

Third, when we look at a specification-by-specification analysis, we are unable to find prejudice to appellant when he was convicted of only one offense. . . . when the panel acquitted appellant of the three other specifications of sexual assault, any violation of the presumption of innocence as to those specifications resulted in no prejudice. . . .

Fourth, we are convinced beyond a reasonable doubt that even if no propensity instruction had been given, the results in this trial would have been the same. . . .

Finally, but least importantly, we find, to the extent that the military judge’s instructions were confusing, any confusion in this case was harmless. . . .

75 M.J. at 897-898 (emphasis in original).

On March 3 CAAF granted review:

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. 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 issues:

I. WHETHER THE ARMY COURT INCORRECTLY FOUND THAT THE MILITARY JUDGE’S PANEL INSTRUCTIONS WERE HARMLESS ERROR IN LIGHT OF UNITED STATES v. HILLS.

II. WHETHER THE ARMY COURT INCORRECTLY RULED THAT AN OFFENSE DEFINED BY THE PRESIDENT CANNOT PREEMPT A GENERAL ARTICLE 134, UCMJ, OFFENSE, AND THAT PREEMPTION IS NOT JURISDICTIONAL IN SUCH CIRCUMSTANCES.

Briefs will be filed under Rule 25 on Issue I only.

CAAF granted review in two cases yesterday. The first grant is in a case that was certified by the Judge Advocate General of the Air Force back in November (discussed here):

No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. 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. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT’S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?

II. WHETHER APPELLEE’S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT’S AFFIRMANCE OF THE LOWER COURT’S DISMISSAL OF THAT SPECIFICATION.

III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

IV. 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 VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATEMILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.

Briefs will be filed under Rule 25 on Issues I and II only.

The second involves a specified issue in a Coast Guard case:

No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER APPELLANT WAS ENTITLED TO ARTICLE 31(b), UCMJ, WARNINGS AT ANY POINT DURING HIS INTERROGATION BY CGIS, AND IF SO, WHETHER HE WAS PREJUDICED BY THE ADMISSION OF ANY OF HIS STATEMENTS.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business. Appellant’s division officer called upon his superior, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.

The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom he repeated his story with further details.

The military judge concluded, and the CCA affirmed, that the appellant’s interrogation by CGIS was not for a law enforcement or disciplinary purpose.

Last week CAAF granted review in the following Air Force case:

No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. 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 FINDINGS AND SENTENCE MUST BE SET ASIDE IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT AIR FORCE ACADEMY CADET E.T. 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.

Briefs will be filed under Rule 25.

We last noted this case (in the context of Issue II) in this post.

The AFCCA’s opinion is available here. The CCA found that the failure to disclose the cadet’s status as a confidential informant was a discovery violation:

We find that Appellant’s defense counsel should have been informed that former Cadet Thomas was an informant and should have received some portions of former Cadet Thomas’ AFOSI dossier in discovery . . . This information revealed by former Cadet Thomas about his work as an informant would have provided substantial ammunition for the Defense to use in their efforts to impeach him and undercut his credibility.

Slip op. at 10. The CCA concluded, however, that it was harmless beyond a reasonable doubt because “there is no reasonable possibility that the disclosure error contributed to the contested findings of guilty.” Slip op. at 12.

On the Hills issue the CCA concluded that the improper use of the charged offenses for propensity purposes was also harmless beyond a reasonable doubt based on the strength of the other evidence:

we find any error surrounding the admission of propensity evidence in this case to be harmless beyond a reasonable doubt as it applies to the charged offenses involving both Cadet MI and Ms. SW. Unlike the Hills case, where the evidence was weak and there was no eyewitness testimony, the evidence supporting the charges of which Appellant was convicted was extremely strong. The testimony of Cadet MI and Ms. SW was strong, consistent over time, and corroborated by a number of other witnesses, as addressed earlier. And perhaps most harmful of all were Appellant’s own admissions. Conversely, the evidence regarding the charges involving Ms. KA was weak. The fact that Appellant was acquitted of the charges involving Ms. KA further undercuts the idea that the instruction may have contributed to the findings of guilty.

Slip op. at 20-21.

No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. 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 issues:

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

This is the fourth case before CAAF involving application of Hills (our #3 Military Justice Story of 2016) in judge-alone trials. The other three are Hukill (grant discussed here), Phillips (grant discussed here), and Hazelbower (grant discussed here).

CAAF is also considering a Hills issue in Berger (grant discussed here), however the court ordered no briefs.

CAAF summarily reversed and remanded five Hills trailers last term. None (so far) this term.

CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER PUNISHING THE SAME TRANSACTION OF OBTAINING CHILD PORNOGRAPHY WITH FOUR CONVICTIONS UNREASONABLY EXAGGERATES APPELLANT’S CRIMINALITY AND TRIPLES HIS PUNITIVE EXPOSURE, CONSTITUTING AN UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.

The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on  Tuesday, November 15, 2016):

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. 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 GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Jan. 3, 2017) (discussed here):

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. 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 issues:

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here. The court applied Hukill and affirmed.

Yesterday CAAF granted review in this Air Force case:

No. 16-0475/AF. U.S. v. Nathan G. Wilson-Crow. CCA 38706. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN HE FOUND THAT SPECIFICATION 2 OF CHARGE I – APPELLANT’S CHILD SEXUAL ABUSE OF A.L. IN VIOLATION OF ARTICLE 120b – CONSTITUTED CHILD MOLESTATION UNDER MIL. R. EVID. 414(d)(2)(a) BECAUSE HE FOUND THAT “CONDUCT PROHIBITED BY ARTICLE 120” INCLUDES ARTICLE 120b OFFENSES.

II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT, PURSUANT TO MRE 413, IT COULD USE OFFENSES IN ADDITIONAL CHARGE I, TO WHICH APPELLANT PLEADED NOT GUILTY, AS PROPENSITY EVIDENCE IN SUPPORT OF THE REMAINING SPECIFICATIONS OF THAT CHARGE WHICH HE ALSO CONTESTED.

III. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

Briefs will be filed under Rule 25 on Issues I and II only.

The first granted issue is very similar to the issue in United State v. Fetrow, No. 16-0500/AF (CAAFlog case page) (argued Tuesday, October 25, 2016).

The second granted issue was (seemingly) resolved by United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

The third granted issue is functionally identical to the issue in United States v. McClour, No. 16-0455/AF (CAAFlog case page) (argued Wednesday, November 2, 2016).

The Air Force CCA’s decision is available here but addresses none of the granted issues. The CCA decided the case on February 25, 2016 – two months before the Judge Advocate General of the Air Force certified Fetrow, one month after CAAF granted review in Hills, and four months before CAAF granted review in McClour.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 –  a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence undermines the presumption of innocence.

In the wake of Hills both the Army and Air Force CCAs held that the decision does not apply to a case tried by military judge alone. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here).

As noted above, CAAF granted review of the Hills issue in Hukill on November 23.

Yesterday CAAF granted review in Phillips:

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. 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 MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO REMAND APPELLANT’S CASE FOR NEW POST-TRIAL PROCESSING AFTER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION (SJAR) FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION. See UNITED STATES v. ADDISON, NO. 16-0615/AF (C.A.A.F. 26 July 2016) (rem.).

III. WHETHER APPELLANT’S CONVICTION ON SPECIFICATION 1 OF THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED IN A SEXUAL ACT.

Briefs will be filed under Rule 25.

At the end of last month CAAF received a certification from the Army JAG and the court granted review in a Coast Guard case.

The certification involves a Government appeal of military judge’s ruling that suppressed the fruits of a search of the accused’s mobile phone:

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

I. WHETHER THE FIFTH AMENDMENT’S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT’S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

The Army CCA affirmed the military judge’s ruling in a short opinion available here.

The grant involves a specification under Article 120b that was changed during the trial to allege a different specific sexual act, and a specification under Article 134 that lacked words of criminality such as wrongfully:

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS’S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here. The CCA rejected both issues concluding that the amended specification alleged an act that was essentially included in the original act alleged, and also that words of criminality are not necessarily required (in accordance with United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here)). However, one judge dissented and would have dismissed the Article 134 specification due to the omission of words of criminality.

Last week CAAF granted review in an Air Force case presenting an interesting computer search issue:

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. 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 PANEL OF AFCCA THAT HEARD APPELLANT’S CASE WAS IMPROPERLY CONSTITUTED.

II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

Briefs will be filed under Rule 25 on Issue II only.

The AFCCA’s decision is available here and reveals that:

The affidavit requesting search authorization for Appellant’s residence stated AFOSI was investigating “Florida Statute Section 847.0135 Computer Pornography; Traveling to meet a minor.” . . .

The military magistrate granted AFOSI’s request for authorization to conduct a search of Appellant’s residence to obtain “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.” AFOSI’s search of the residence resulted in the seizure of standalone computer hard drives, phones, thumb drives, floppy diskettes, and camera memory cards. . . .

At trial and on appeal, Appellant asserts that the search authorization was unconstitutional because it was overbroad in defining what could be seized. Appellant contends the Government only had information that Appellant had engaged in “online communications” with AP. Instead of using vague terms such as “electronic media,” he asserts the search authorization should have more particularly described types of electronics that could be used for such communications, such as laptop computers, smart phones, or gaming systems. Appellant also asserts that the manner in which AFOSI conducted the search and seizure reinforced the overbroad nature of the search authorization, as AFOSI indiscriminately seized multiple types of electronics that could not reasonably be expected to store such online communications. . . .

United States v. Richards, No. 38346, slip op. at 21-22 (A.F. Ct. Crim. App. May 2, 2016).

The AFCCA decided that the authorization was not overbroad, concluding:

While computer technology involves greater dangers of invasion of privacy and overreaching, computer searches are fundamentally no different than other searches involving commingled documents. When commingled records are searched, “it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andersen v. Maryland, 427 U.S. 463, 482 n.111 (1976). In these types of searches, “responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Id. Investigators must be allowed a “brief perusal of documents in plain view in order to determine whether probable cause exists for their seizure under the warrant.” United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981). Because computers and other electronic devices with internal digital storage have the capacity to store tremendous amounts of intermingled data, there may not be a practical substitute for briefly examining many, if not all, of the contents. United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Richards, 659 F.3d 527, 539–40 (6th Cir. 2011).“The general touchstone of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998).

Based on these legal principles, we find no constitutional overbreadth concern with either the terms of the search authorization or the manner in which the search was carried out.

Slip op. at 24-25.

In United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), CAAF found that a challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals was moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

CAAF granted review in Dalmazzi in August, and dozens of trailer cases followed. Mootness in Dalmazzi doesn’t resolve (all of) those trailer cases, and so on Friday CAAF ordered briefing in one of them:

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On further consideration of the granted issues in the above-entitled case (Daily Journal, October 27, 2016), it is ordered that Issue II is hereby amended as follows:

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 PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

The petition for grant of review is also granted on the following specified issue:

III.  WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPELLATE MILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OR HIS DESIGNEE.

The parties will file contemporaneous briefs and a joint appendix on the granted issues as amended and the specified issue on or before January 24, 2017. Reply briefs will not be filed. Amicus curiae briefs under Rule 26(a)(1) will be filed on or before January 24, 2017, and motions for leave to file amicus curiae briefs under Rule 26(a)(3) will be filed on or before January 17, 2017. Should said motions be granted, amicus curiae briefs under Rule 26(a)(3) will also be filed on or before January 24, 2017.

(emphasis in original).

Ortiz is also something of a Hills (CAAFlog case page) trailer. CAAF granted review in Ortiz on November 29, 2016, and Issue I is:

WHETHER THE MILITARY JUDGE WRONGLY APPLIED MILITARY RULE OF EVIDENCE 414 TO CHARGED MISCONDUCT, THEREBY LOWERING THE GOVERNMENT’S BURDEN OF PROOF AND VIOLATING APPELLANT’S CONSTITUTIONAL RIGHTS.

[correction – the Nov. 29 grant involves a different appellant named Ortiz]

By my count, including trailers granted yesterday, CAAF has granted review of the CMCR judge issue in 71 69 cases (including Dalmazzi). Of those, 61 are from the Army, 8 are from the Air Force, and 2 are from the Navy (Navy cases wrongly counted; see comments).

Dalmazzi was an Air Force case, but considering that the overwhelming majority of granted cases involving this issue are from the Army, I think it’s strange that CAAF would decide to hear argument in another Air Force case instead of an Army case.

Disclosure: In my personal capacity I represent an Army appellant whose case is before CAAF with CMCR judge issues.