CAAFlog » CAAF Grants

Back in April, in this post, I discussed the Air Force CCA’s decision on a Government interlocutory appeal in United States v. Buford, No. 2013-26 (A.F.Ct.Crim.App. Apr. 4, 2014) (link to order).

The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.

The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted).

At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:

No. 14-6010/AF.  U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

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

I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).

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

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

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

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

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

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

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

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

In addition to Jones (discussed here), CAAF granted review in two additional cases last week:

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

Briefs will be filed under Rule 25.

I analyzed the NMCCA’s decision in Gilbreath in a December, 2013, post titled: NMCCA finds that Article 31(b) does not apply to inactive reservists. I think CAAF’s grant is some evidence that United States v. Jones, No. 14-0071/AR (CAAFlog case page), is going to be a major decision about the application of Article 31(b) and the standard articulated in United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981).

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

Briefs will be filed under Rule 25.*

*  Judge Ohlson has recused himself from participation in this case.

I mentioned Newton back in January (in this post). The Army CCA’s opinion is available here. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of four offenses: Rape of a child under the age of twelve years in violation of Article 120; indecent acts in violation of Article 120; wrongfully sending a picture of himself to his natural daughter, who was under eighteen years of age, focused on his genital area, showing an erection underneath his clothing in violation of Article 134; and knowingly failing to register as required by the Sex Offender Registration and Notification Act, 18 U.S.C. § 2052(a) in violation of Article 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

The Government charged the 134 offenses in the conjunctive, alleging both prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces. The members convicted the appellant as charged. On review the CCA noted that the Government presented no evidence that the conduct was prejudicial to good order and discipline, and found the Article 134 convictions legally and factually insufficient to sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134, UCMJ.” Slip op. at 3. But it otherwise affirmed the convictions as service discrediting.

Judge Ohlson’s recusal in Newton is presumably due to his prior service with the Department of Justice.

In the Air Force case of United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF found that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge, and that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid. Judge Soybel twice participated in the AFCCA’s review of Janssen, prompting the appeal to CAAF.

Writing for the court, Judge Stucky considered the possibility of saving the CCA’s action on the case by application of the de facto officer doctrine. This doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).

After CAAF granted review in Janssen on December 19, 2013, the court granted review in numerous trailers (my notes show eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). CAAF’s daily journal for Friday, June 27, shows action in two of those cases. In one, CAAF summarily reverses in light of Janssen:

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Upon further consideration of the granted issue, 73 M.J. 193 (C.A.A.F. Jan. 2, 2014), and in light of United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed.  The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), before a properly constituted panel of that court.

But in the other, CAAF does something very different:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE.  SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

Briefs will be filed under Rule 25.

Presumably the appellant in Jones was late in challenging the appointment. Whether that matters remains to be seen.

On Thursday CAAF granted review of what appears to be a trailer of its grant in United States v. Phillips, No. 14-0199/AR (grant discussed here) (CCA opinion discussed here):

No. 14-0491/AR. U.S. v. Jacob T. NEMETH. CCA 20120653. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILT TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”

No briefs will be filed under Rule 25.

How many cases does it take before it’s a trailer park?

On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here and reveals that a marital privilege issue was initially raised personally by the appellant, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of possessing child pornography in violation of Article 134. He was also convicted in accordance with his pleas of guilty of violating a lawful general order by wrongfully possessing sexually explicit material in the United States Central Command Area of Responsibility in violation of Article 92. He was sentenced to confinement for one year and a dishonorable discharge.

All of the images were discovered when another airman, who had the appellant’s permission to use the appellant’s computer, discovered sexually explicit photos of the appellant’s wife and child pornography in a folder named “Forbidden” on the computer. At trial the appellant moved to suppress the photos of his wife, arguing that they were confidential marital communications. The military judge denied the motion. The appellant also presented a defense that someone else downloaded the child pornography to his computer. Then, in closing argument, the trial counsel tied the two sets of images together with an argument that:

[T]he members could find the appellant’s knowing possession of child pornography because he stored the images of children in the same “forbidden” folder – the “private stash” where he stored “the naked pictures of his wife.”

United States v. Yanez, No. 38181 (A.F.Ct.Crim.App. Dec. 17, 2013) (link to slip op.). Rejecting an asserted error in the admission of the photos of the appellant’s wife the CCA concluded:

Assuming we were to find error, [Footnote: We leave for another day whether we do so on these facts.] a military judge’s erroneous admission of a confidential marital communication is reviewed to determine whether any prejudice arising from such admission was harmless. . . . [W]e find no prejudice. The strength of the Government’s case was considerable. . . By comparison, the defense’s case was based on the strained theory that someone other  than the appellant could have downloaded the child pornography to his computer. . . . The trial counsel’s argument that the colocation of the child pornography and the photos of the appellant’s wife was a sound one; the materiality and quality of the evidence – i.e., that a husband could reasonably be expected to privately store sexually explicit photos of his wife – was persuasive. Nevertheless, on balance and in light of the overwhelming strength of the Government’s case even absent those photos, we find any error occasioned by the admission of such photos to be harmless.

Id., slip op. at 7.

Yesterday CAAF granted review in the Army case of United States v. Castillo, No. 14-0457/AR, on the following issue:

Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

The Army CCA heard oral argument in this case on January 22, 2014, (as mentioned in this TWIMJ post) but I can’t find an opinion on the CCA’s website.

This is the third member bias issue granted by CAAF in the past six weeks. The others are United States v. Peters, No. 14-0289/AR (mentioned here), which was granted on June 3, and United States v. McFadden, No. 12-0501/AF (last mentioned here), which was granted on April 24.

CAAF’s last significant member bias opinion was in the certified Marine Corps case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page). In that case the NMCCA set aside the findings after concluding that a member’s question to a witness indicated implied bias. The Navy JAG certified the case to CAAF, questioning whether the CCA conducted the proper analysis. CAAF agreed that the CCA got it wrong, finding actual bias where the CCA found only implied bias. CAAF then affirmed the CCA’s action that set aside the findings.

In my opinion analysis of Nash I commented:

During the oral argument in this case (which we did not cover), there was a fair amount of discussion of the need to simplify the tests for member bias. Perhaps the court’s simple resolution of this case signals a preference for a liberal application of the test for actual bias (a, uh, “liberal grant”). But more substantive changes in the law will have to wait for a more complicated case.

Perhaps that time has come.

On Tuesday CAAF granted review of the published decision of the Army CCA in United States v. Phillips, No. 20120585, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.) (link to slip op.):

No. 14-0199/AR. U.S. v. Bryce M. PHILLIPS. CCA 20120585. Review granted on the following issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

I discussed the CCA’s en banc opinion in Phillips in a post in February titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.” I concluded that post with the following observation:

Senior Judge Lind (with the majority) and Judge Krauss (with Senior Judge Yob) are clearly in stark ideological opposition on this issue. Senior Judge Lind sees it as a choice left to the prosecutor’s discretion, while Judge Krauss sees that discretion subject to significant limitations in law. Both are compelling arguments and any wonk has to get excited at the possibility that CAAF will weigh in – CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

Dreams do come true.

CAAF also granted review of an issue relating to disqualification of a panel member in an Army case:

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Review granted on the following issue:

Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

The Army CCA rejected the error in an unpublished opinion issued in October and available here. The court deferred to the military judge’s decision, noting that “the military judge made extensive findings of fact, applied the liberal grant mandate, and employed the proper test for determining whether LTC JC should be challenged for cause based on implied bias.” Slip op. at 4.

CAAF recently granted review in two cases. First is an Air Force case that looks to be a Barberi (CAAFlog case page) trailer:

No. 14-0384/AF. U.S. v. Patrick J. HUEY, Jr. CCA 38139. Review granted on the following issue:

WHETHER THE GENERAL VERDICT OF GUILT RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF THE IMAGES PRESENTED TO THE FINDER OF FACT WAS NOT CHILD PORNOGRAPHY.

Briefs will be filed under Rule 25.

Second is an Army case:

No. 14-0453/AR. U.S. v. James S. PIREN. CCA 20110416. Review granted on the following issues:

I.    WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY OVERRULING THE DEFENSE COUNSEL’S SCOPE OBJECTION DURING THE GOVERNMENT’S CROSS-EXAMINATION OF APPELLANT.

II.   WHETHER THE MILITARY JUDGE ERRED BY DENYING THE MOTION TO SUPPRESS RESULTS OF THE DNA ANALYSIS.

Briefs will be filed under Rule 25.

I can’t find opinions from either CCA on their websites.

CAAF granted review of an additional Article 12 issue in McPherson, and set the case for oral argument on June 4, 2014 (the last scheduled day of oral arguments in the term).

The AFCCA’s published decision in United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. Nov. 19, 2013) (link to slip op.) got our attention when it was decided because of the way the CCA resolved the question of whether the appellant’s confession was adequately corroborated. Sam discussed the opinion in a post titled: AFCCA Goes Back to the Future to Find Corroboration for Confession.

The Judge Advocate General of the Air Force then certified the case to CAAF for review of a different issue, involving application of Article 12, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

After the appellant was convicted, he was confined in a local civilian facility for 15 days. There was at least one foreign national who was not a member of the armed forces in the facility with him. Known only as “the Mexican,” the foreign national was awaiting deportation hearings. The appellant did not complain about his confinement, and did not raise the issue of a violation of Article 12 until appellate review.

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I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

In United States v. Jones, No. 14-0071/AR (CAAFlog case page), a potential co-conspirator named Ellis (who was an augmentee military police officer) learned about the completed crime (a robbery) and questioned Jones without complying with Article 31(b), obtaining a confession. CAAF is reviewing the case to determine if the military judge erred by denying the Defense motion to suppress that confession.

As I discussed in my argument preview, current precedent makes for a hard fight for the appellant in Jones, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

But listening to last week’s project outreach oral argument, I got the feeling that CAAF’s resolution of the case just might involve a major decision about the applicability of Article 31(b). Then, on Monday (five days after hearing argument in Jones), CAAF granted review of a similar issue in the case of one of Jones’ co-conspirators, who was also questioned by Ellis:

No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS TAKEN FROM APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ.

Briefs will be filed under Rule 25.

I discussed this case in a post last December titled “The right to remain silent when the evidence of guilt is overwhelming” (analyzing the Army CCA’s consideration of numerous references during the trial to Carrasquillo’s invocation of his right to remain silent). The CCA’s opinion did not discuss the admissibility of any statements Carrasquillo may have made to Ellis. But with what we know about Jones, the following passage from the CCA’s opinion takes on new meaning:

When SPC [Ellis] found out that Mr. DIIA had been robbed and heard a description of the assailants, he confronted appellant and SPC [Jones], who admitted that they participated in the crimes. Specialist [Ellis] informed his command of these disclosures, and appellant and the two other soldiers were quickly identified as potential suspects in the crimes. Appellant and SPC [Jones] were removed from the redeployment flight.

United States v. Carrasquillo, 72 M.J. 850, 852 (A.Ct.Crim.App. Nov. 27, 2013).

I discussed the seven instructional error cases on CAAF’s docket this term in this post from last month. With a new grant from last Thursday, the total is now up to eight:

No. 14-0048/AR.  U.S. v. Jason C. WAGNER.  CCA 20111064.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

No briefs will be filed under Rule 25.

Back in November, Sam wrote a post about the Air Force CCA’s published decision in United States v. Piolunek, __ M.J. __, No. 38099 (A.F.Ct.Crim.App. 2013) (link to slip op.). The title of the post was: AFCCA Invites CAAF to Clarify its Position in Barberi.

In United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page), CAAF determined that the Due Process Clause requires that the conviction be set aside when it is the product of a general verdict of guilt that is based in part on conduct that is constitutionally protected.

In Piolunek, the AFCCA affirmed convictions for receipt and possession of child pornography, even though it found that “3 of the 22 images that served as the basis for the appellant’s convictions do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Piolunek, 72 M.J. 830, slip op. at 7.

But yesterday CAAF said:

No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following issue:

Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.

Briefs will be filed under Rule 25.

Last week CAAF granted review of the Air Force case of United States v. Torres, No. 14-0222/AF, with the following issue:

Whether the military judge erred by denying the defense requested instruction.

The case involves Appellant’s assaults upon his wife, including one about which a “neurologist testified it was possible the appellant had an epileptic seizure that morning which resulted in him curling up on the floor, and that his aggression towards his wife when roused by her, was a postictal violent response which did not constitute conscious and voluntary behavior on his part.” United States v. Torres, No. 37623, slip op. at 3 (A.F.Ct.Crim.App. Oct. 2, 2013) (link to slip op.). In connection with this possibly postictal violence, Appellant was convicted of aggravated assault for choking his wife with his hands.

Prior to findings, the Defense requested an instruction on “voluntariness” that included:

The evidence in this case has raised an issue [of] whether the acts alleged in the [aggravated assault specification] were committed voluntarily. An accused may not be held criminally liable for his actions unless they are voluntary. If the accused, due to a medical condition such as a seizure disorder, is incapable of acting voluntarily at the time of the offense, then his actions were involuntary, and he may not be found guilty of the offense . . . .

Slip op. at 4. The military judge refused to give the requested instruction. The AFCCA considered this issue and, after considering the defense of automatism (“[a]ction or conduct occurring without will, purpose, or reasoned intention, such as sleepwalking; behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” slip op. at 7), and how it applies to mens rea (mental state) and actus reas (the guilty act), the court “reject[ed] the appellant’s effort to apply the automatism defense in terms of his actus reus.” Slip op. at 9. The court then concluded that even if Appellant could use his mental state as a defense in this manner:

The members were instructed that the prosecution had the burden of proving each of the elements beyond a reasonable doubt, including that the appellant’s choking of his wife was unlawful (defined as “without legal . . . excuse”) which, as argued by the defense, clearly goes to the question of the voluntariness or consciousness of his acts. Thus, the purpose of appellant’s requested instruction was substantially met by the instructions given to the panel.

Slip op. at 10. CAAF will now review both the CCA’s predicate finding of no error in the judge’s refusal to give the instruction and, if it finds error, the CCA’s subsequent finding of harmlessness.

Instructions are a big topic at the court this term, with CAAF’s ongoing consideration of United States v. Davis, No. 14-0029/AR (CAAFlog case page) (questioning judge’s failure to sua sponte give defense of property instruction), United States v. MacDonald, No. 14-0001/AR (post discussing grant) (questioning judge’s failure to give requested involuntary intoxication instruction), and United States v. Talkington, No. 13-0601/AF (CAAFlog case page) (questioning judge’s instructions regarding consideration of sex offender registration).

The court has also decided instructional issues in United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (C.A.A.F. 2014), recons. den., __ M.J. __ (CAAFlog case page) (reversing due to the judge’s failure to instruct members to disregard improper human lie detector testimony), United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (C.A.A.F. 2014) (CAAFlog case page) (affirming after finding improper instructions on the elements to be harmless error), and United States v. Hornback, No. 13-0442/MC, __ M.J. __ (C.A.A.F. 2014) (CAAFlog case page) (affirming despite finding significant prosecutorial misconduct, because of the effectiveness of the judge’s curative instructions).

By this count, Torres is the seventh instructional error case this term.