CAAFlog » CAAF Grants

Congress provided specific criteria for member selection in Article 25(d)(2):

When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.

Rank is not one of these factors. Last term, in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page), CAAF found the improper categorical exclusion of members on the basis of rank to be harmless. But with a grant of review on Monday, CAAF will revisit this issue:

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. 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:

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that:

Prior to trial, the defense objected to the exclusion of junior members under convening order #1b-13, which appointed only officer members O-4 and above, enlisted members E-8 and above, and no warrant officers. This panel was detailed after the staff judge advocate (SJA) solicited only these specific categories of senior nominees from subordinate commanders. The SJA provided the CA draft convening order #1b-13 and the applicable questionnaires for consideration. The CA then picked those members as were suggested to him by the SJA without modification. The military judge agreed with the defense’s objection finding that the panel selection process improperly excluded potential members based on rank.

Subsequently, the CA was provided a draft, amended convening order, #1c-13, containing the same members previously detailed under convening order #1b-13. The CA was also furnished with his entire alpha roster of over 8,000 members with instructions that he could substitute any proposed member for someone senior to the accused meeting the Article 25 criteria. After consideration, the CA detailed the same members stating, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.”

Slip op. at 5. The military judge found no impropriety in the second convening order and the CCA affirmed.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Many things aren’t hearsay (such as an out-of-court statement offered to show only its effect on the listener), and there are many exceptions to the hearsay rule that permit admission of a hearsay statement under various situations.

Two interesting grants from CAAF last week involve the hearsay rule.

First, in the Air Force case of United States v. Bowen, CAAF specified an issue involving a statement admitted as an excited utterance:

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. 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 issue specified by the Court:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. See M.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Briefs will be filed under Rule 25.

An excited utterance is hearsay that is admissible because it is “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Mil. R. Evid. 803(2). The Air Force CCA’s opinion in Bowen is available here and reveals that law enforcement responded to reports of screaming and discovered Bowen’s wife unconscious in the bathtub, and that she was only partially conscious when she was questioned. The military judge considered the circumstances and concluded that the head nod was admissible as an excited utterance, and the AFCCA affirmed that ruling.

Next, in the Army case of United States v. Swift, CAAF granted review of two issues and specified a third:

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. 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 Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

And the following issue specified by the Court:

III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. It’s hard to clearly identify the uncharged misconduct at issue, but the CCA focuses on the military judge’s ruling that permitted a teacher to testify about an out-of-court statement that the child made to her years earlier. The military judge introduced the statement as “victim’s outcry evidence,” and the CCA rightly finds that this ruling was error because there is no such exception to the hearsay rule (though there used to be; see ¶ 142(c), MCM (1969) (available here)). However, the CCA concludes that the statement was admissible for a non-hearsay purpose:

[W]e conclude, first, that the military judge inappropriately applied the outdated “victim outcry” principle. Nonetheless, we agree that a non-hearsay basis exists to allow the admission of the statement – namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. Evid. 802 because it was not offered for the truth of the matter asserted. Despite the military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial counsel specifically offered the victim’s statement as “effect on the listener” and as a “prior consistent statement.” The statement was properly offered to show why Ms. A contacted CPS and how the investigation ensued.

United States v. Swift, No. 20100196, slip op. at 4-5 (A. Ct. Crim. App. Jan. 21, 2016) (emphasis). This conclusion is deeply problematic for at least three reasons. First, there’s no indication that the members were instructed about any limitation on the use of the statement the judge considered the statement for only a limited purpose, and the CCA can’t restrict its use post hoc. Second, the effect on the listener (that CPS was contacted) was not an issue at trial, and so the statement had no probative value (but a high prejudicial effect). Third, there’s no indication of any foundation for admission of a prior consistent statement (and a footnote acknowledges this).

Despite its butchery of the hearsay rule, the CCA concluded that the admission of the statement was harmless in part based on the appellant’s pretrial admissions. CAAF’s grant of review, however, directly challenges that conclusion.

On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. 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 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Wilson is available here.

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. 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 ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. 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 personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

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 further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.

Yesterday CAAF granted review in a Navy case:

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. 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:

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, “I THINK HE’S AN IDIOT,” OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT’S STATEMENTS AS “RIDICULOUS,” VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT “SLEEPS IN A BED OF LIES.” WAS THIS PLAIN ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found error but not plain error that some of the comments were not improper and others were not plain error (the defense did not make a timely objection).

My notes indicate that this is the first prosecutorial misconduct case of the term. Government bloopers were our #2 Military Justice Story of 2015.

Update: Links to the briefs are at the end of this post.

In this post I noted CAAF’s docketing of a writ-appeal petition by an apparent alleged victim.

Yesterday CAAF granted review:

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:

I. WHETHER THE NMCCA ERRED BY ERRONEOUSLY DENYING EV’S PETITION FOR A WRIT OF MANDAMUS DESPITE EV’S CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ERRONEOUSLY RULING THE DEFENSE SATISFIED EACH PRONG OF MIL. R. EVID. 513(e)(3) AND BY RULING THAT MIL. R. EVID. 513(d)(5) APPLIED.

III. WHETHER THE MILITARY JUDGE VIOLATED EV’S ARTICLE 6b RIGHTS BY ERRONEOUSLY APPLYING IMPERMISSIBLE EXCEPTIONS AND DENYING EV A RIGHT TO RECEIVE NOTICE AND TO BE HEARD.

That oral argument will also be held on the following specified issue:

IV. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER DECISIONS OF THE COURTS OF CRIMINAL APPEALS RENDERED PURSUANT TO ARTICLE 6b, UCMJ.

That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant’s brief. Appellant may file a reply within 2 days of the filing of the said answers;

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.

The specified issue immediately bring to mind Judge Ryan’s dissent in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).

Case Links:
Writ-appeal (Appellant’s) petition
Appellee’s (Government) brief
Real Part in Interest (accused’s) brief
Appellant’s reply brief
Brief of Amicus Curiae (Protect our Defenders)

Yesterday CAAF granted review of an issue raise by the appellant personally:

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

This is the third Grostefon issue granted this term; the first was in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), and the second was in United States v. Nieto, No. 16-0301/AR (discussed here). All three are Army cases.

On Friday CAAF granted review in a Coast Guard case:

No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. 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:

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.

Briefs will be filed under Rule 25.

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

In the presentencing phase of the court-martial, trial counsel asked M.S. about stress from the trial process and if stress had impacted her pregnancy. In response, M.S. testified that she had been pregnant with twins and that one of the twins “didn’t make it.” Then, addressing the stress from the trial process, she testified that she was worried about the effects of stress on the remaining baby inside her and hoping she could protect her baby from any effects of her stress.

S.W., testifying about impacts of Appellant’s offenses on her life, stated that “it’s hard to see my baby, because he was born premature.” Asked by trial counsel if she believed that stress had something to do with that, she stated she was diagnosed with pre-eclampsia, and that the condition is brought on by stress. Asked if the trial process had caused her stress, she agreed that it had.

Defense counsel did not object to this testimony, and did not have any cross-examination for either witness. In his sentencing argument, trial counsel did not bring up the testimony about the pregnancies of M.S. and S.W. except to briefly argue that Appellant had not apologized for causing stress during M.S.’s pregnancy.

Slip op. at 9. The CCA concluded that “in the absence of objection, we cannot conclude that the admission of this evidence was plain or obvious error.” Slip op. at 10.

In United States v. Davis, 75 M.J. 537 (A. Ct. Crim. App. Nov. 25, 2015) (en banc) (discussed here), the Army CCA held that the failure of the defense to request an instruction on an affirmative defense (mistake of fact as to consent) forfeited the issue absent plain error.

Yesterday CAAF granted review:

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT’S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

Briefs will be filed under Rule 25.

As the Army CCA’s site is still inaccessible to the public, the CCA’s slip op. is available here.

In United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), CAAF is considering whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93. The case is one of a handful this term that rely on the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to argue that the offense does not require a sufficiently culpable mens rea (mental state).

CAAF already decided two such cases: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (applying Elonis to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, __ M.J. __ (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). In addition to Caldwell, I’m tracking one other such case (Goffe).

Yesterday the court granted review in a Caldwell trailer:

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. 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 ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.

No briefs will be filed under Rule 25.

Yesterday CAAF granted review of a Grostefon issue in an Army case:

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386.  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 granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.

Briefs will be filed under Rule 25.

(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

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 zack@caaflog.com

Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:

No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073.  On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.

This was the fourth trip to Judiciary Square by the Bergdahl defense team. The first, second, and third were all also unsuccessful.

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 zack@caaflog.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.

CAAF recently granted review and summarily reversed the decision of the Army CCA in a case where one of the members was apparently an interloper on the panel:

No. 16-0233/AR. U.S. v. Michael J. Moody. CCA 20121083. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the record of trial, it is noted that the record reflects that the court-martial was called to order pursuant to the following orders:

Court-Martial Convening Order Number 1 dated 7 February 2012, superseded by Order Number 3, dated 4 April 2012, as amended by Order Number 11, dated 21 June 2012, as superseded by Order Number 14, dated 12 July 2012, as amended by Order Number 18, dated 20 September 2012, and as amended by Order Number 25, dated 26 November 2012.

Major Krystal G. Sessoms was detailed to the court-martial by Order Number 14 but was removed from the court-martial by Order Number 18. With that set of orders in the record, the members appeared and were sworn. Major Sessoms did not appear. After numerous challenges were granted, the court fell below quorum.

When the case was called again two months later, the trial counsel announced that Order Number 25 had been signed detailing more members to the court-martial. The newly detailed members each appeared and were sworn. However, without having been detailed anew, Major Sessoms also appeared, was sworn, and heard the case.

Accordingly, it is ordered that said petition is hereby granted on the following specified issue:

WHETHER JURISDICTIONAL ERROR OCCURRED WHEN MAJOR SESSOMS WAS DETAILED, LATER REMOVED BY VICING ORDER, BUT ULTIMATELY WAS SWORN AND HEARD THE CASE.

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 a new review and consideration of the specified issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012).

The term vicing in the specified issue refers to the Army practice of identifying new members for a court-martial in an order that details the new members “vice” the old members. See United States v. Cook, 8 M.J. 434, 436 (C.A.A.F. 1998); United States v. McCall, 26 M.J. 804 (ACMR 1988).

Our #6 Military Justice Story of 2015 was about decisions of the Army CCA, Air Force CCA, and Navy-Marine Corps CCA that allow the Government to use charged sex offenses as evidence of criminal propensity to commit other charged offenses in the same court-martial. Such propensity evidence in sex offense prosecutions is generally allowed under Military Rule of Evidence 413 (for sex cases) and 414 (for child molestation cases).

Last month CAAF granted review in United States v. Hills, No. 15-0767/AR (discussed here), an Army case challenging the use of charged offenses for propensity purposes under Mil. R. Evid. 413.

Last week CAAF granted review in another such case:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. 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 specified by the Court:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION “TO USE THE CHARGED SEXUAL OFFENSES AS PROPENSITY EVIDENCE FOR EACH OTHER UNDER MRE 413 AND MRE 414.”

Briefs will be filed under Rule 25.

Notably, the court specified the issue.

Three new – and particularly noteworthy – grants appear on CAAF’s docket.

First, an Army case challenges the use of charged offenses as admissible propensity evidence under Military Rule of Evidence 413. This issue was our #6 Military Justice Story of 2015:

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. 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 HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Hills is available here.

Next, in another Army case, CAAF specified an issue questioning the proper test for prejudice when evidence is admitted in violation of the statutory protections of Article 31(b):

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. 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 specified by the Court:

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT’S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Evans is available here.

Finally, CAAF ordered oral argument on a specified issue in an Air Force case that was certified to CAAF back in October (discussed here). The certified issue challenges the Air Force CCA’s conclusion that the military judge improperly admitted evidence under Mil. R. Evid. 413. The CCA issued its opinion on June 19, 2015, but the JAG did not certify the case until October 7; seemingly past the 60-day time period set for filing a certification in CAAF’s Rule 22(b)(3). However, the Government repeatedly sought reconsideration by the CCA during that time, ostensibly continuing the CCA’s jurisdiction over the case and extending the beginning of the 60-day time period. CAAF will now review that procedural tactic:

No. 16-0053/AF.U.S. v. Shelby L. Williams.CCA 38454.  On consideration of Appellee’s motion to dismiss the case because the certificate of review was not timely filed, and the government’s opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

The date and time of oral argument will be provided to counsel in a separate order.

CAAF’s narrow reading of the jurisdiction of the CCAs was our #5 Military Justice Story of 2015.

Yesterday CAAF granted review of an implied bias issue affecting a member in a Coast Guard case:

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST CDR K IN LIGHT OF HER VARIOUS PROFESSIONAL AND PERSONAL EXPERIENCE WITH SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

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

During voir dire examination, CDR K said she had been assigned to draft a sexual assault response and prevention operational plan as part of her duties on the Coast Guard Atlantic Area staff. The draft plan emphasized preventive measures. At the time of trial, her draft was complete and awaiting the Area Commander’s signature. While performing that duty, she had monitored news stories on sexual assault and read background materials on the subject. She did not deal with response to sexual assault complaints. When asked about the rate of false claims of sexual assault,  she said she had read, probably in multiple sources, that the rate of false claims is about two percent, “and that’s no different than any other crime statistic for false accusations.” When asked if she could disregard those statistics and look at the facts of this case, she responded affirmatively, and added, “I know statistics can be maneuvered by whoever produces those statistics.” She also testified that a co-worker had been falsely accused of sexual misconduct and that she was mindful of the devastating consequences that ensue from false reports.

United States v. Rogers, No. 1391, slip op. at 3-4 (C.G. Ct. Crim. App. Jul. 8, 2015) (citations to record omitted).