CAAFlog » CAAF Grants

CAAF granted review in two cases last week.

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On Tuesday CAAF granted review in this Air Force case:

No. 17-0404/AF. U.S. v. Vashaun M. Blanks. CCA 38891. 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:

IN LIGHT OF THIS COURT’S DECISION IN UNITED STATES v. HAVERTY, 76 M.J. 199 (C.A.A.F. 2017), DID THE MILITARY JUDGE ERR WHEN HE INSTRUCTED THE MEMBERS APPELLANT COULD BE CONVICTED OF NEGLIGENT DERELICTION OF DUTY?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was “charged with willful dereliction of duty for failing to provide adequate support to his wife over a time period that spanned his assignments to both Korea and the United Kingdom, [but] the members instead found Appellant guilty of the lesser-included offense of negligent dereliction of duty.” Slip op. at 5. The CCA decided the case a month before CAAF decided Haverty.

In the Army case of United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), a functionally-unanimous court applied the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea (mental state) adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.

Article 92(3) addresses a person who “is derelict in the performance of his duties.” Twenty-four years ago the court held “that the military judge properly instructed the members in this case that simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). In reaching that decision the court considered the legislative history of the Article, concluding that:

[T]he more reasonable interpretation of this new codal provision is that Congress rejected an exclusive culpable-negligence standard and intended, instead, to punish both types [simple and culpable/gross] of negligent-duty conduct under Article 92(3).

The new legislative term “derelict” was broad enough to include both degrees of negligence and incorporate Navy practice with Army and Air Force practice. Prior to enactment of the Uniform Code of Military Justice in 1950, the Army and Air Force also punished neglect of duty under the general article, Article of War 96. Para. 183a, Manual for Courts-Martial, U.S. Army, 1949 at 255. The Army interpreted the word “neglect” in the general article as simply an omission of conduct. See generally Snedeker, supra at 616. This practice is also referred to in the legislative history with a comment that it was now punishable under the new Article 92(3). Accordingly, it is our conclusion, at the very least, that Congress intended to establish a simple-negligence standard for nonperformance-of-duty derelicts charged under this statute.

36 M.J. at 421. That conclusion, however, now seems to be in doubt.

CAAF granted review in two cases on Friday. The first is a Navy case:

No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. 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 LOWER COURT FOUND SEVERE PROSECUTORIAL MISCONDUCT. THEN IT AFFIRMED THE FINDINGS AND SENTENCE, GIVING ITS IMPRIMATUR TO THE PROSECUTORIAL MISCONDUCT IN APPELLANT’S CASE. DID THE LOWER COURT ERR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found that the trial counsel committed prosecutorial misconduct in the form of improper argument by calling the appellant a liar, mischaracterizing the appellant’s statements to NCIS, asserting that the defense counsel did not believe the appellant, and misstating the law. But, applying the plain error test – because “the civilian defense counsel did not contemporaneously object,” slip op. at 7, something that the Army court recently held constitutes waiver of any error – the CCA found the improper arguments to be harmless.

The second is an Air Force case that is a Mitchell (CAAFlog case page) trailer:

No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. 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 HIS DISCRETION BY FAILING TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELL PHONE.

II. WHETHER THE AIR FORCE COURT ERRED IN HOLDING APPELLANT WAIVED OBJECTIONS REGARDING INVESTIGATORS’ EXCEEDING THE SCOPE OF APPELLANT’S CONSENT.

Briefs will be filed under Rule 25.

I mentioned Robinson last week in this post, and I discussed the CCA’s opinion (available here) in this post.

On Wednesday CAAF granted review in this Air Force case:

No. 17-0456/AF. U.S. v. Alexander S. Wheeler. CCA 38908. 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:

WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED CHARGE II WAS NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10 U.S.C. § 920.

Briefs will be filed under Rule 25.

The CCA issued a published decision in April that (for no good reason) I didn’t discuss on this blog. United States v. Wheeler, No. 38908, 76 M.J. 564 (A.F. Ct. Crim. App. Apr. 19, 2017) (link to slip op.). The appellant was convicted of a violation of Clause 3 of Article 134 for:

attempting to knowingly persuade, induce or entice a person he believed to be a child who had not yet attained the age of 18 years to engage in sexual activity which, if undertaken, would constitute a criminal offense under Article 120b, UCMJ, 10 U.S.C. § 920b, by means or facility of interstate commerce, to wit: the Internet and cellular telephone, in violation of 18 U.S.C. § 2422(b).

Slip op. at 2. The CCA concluded that:

Consistent with the plain language of Article 120b, UCMJ, 18 U.S.C. § 2422(b), and the holding in Schell, we find that the Article 134 clause 3 offense Appellant was charged with is not composed of a residuum of elements of any of the other enumerated UCMJ offenses. [citations omitted -zds]. We find that the defining characteristic of a violation of 18 U.S.C. § 2422(b), as it was charged in this case, is the “enticement” element. With respect to 18 U.S.C. § 2422(b), Congress intended to criminalize adult use of a means of interstate commerce to intentionally “persuade, induce, or entice” a minor into engaging in sexual activity. Schell, 72 M.J. at 343–44; see also United States v. Brooks, 60 M.J. 495, 498 (C.A.A.F. 2005); Thomas, 2013 CCA LEXIS 667, at *22 (unpub. op.). In its current form, this is a harm that the UCMJ does not specifically address. Under the circumstances, the Government was not preempted from charging Appellant, under clause 3 of Article 134, UCMJ, for attempting to “persuade, induce, or entice” a minor into engaging in sexual activity, in violation of 18 U.S.C. § 2422b.

Slip op. at 10.

In United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013) (CAAFlog case page), CAAF interpreted 18 U.S.C. § 2422(b) and found a substantial basis in law to question the providence of a plea of guilty to violating the statute.

In the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), CAAF is considering the impact of investigators questioning a military suspect, after he invoked his right to remain silent and requested an attorney, in order to gain access to the suspect’s cell phone for a search. The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017. It is one of just three remaining undecided cases argued during the October 2016 Term.

Back in June, in this post, I noted a pair of Air Force CCA decisions – one published and the other involving a Government appeal of a suppression ruling – that held that a “request for the passcode d[oes] not constitute interrogation in violation of the Fifth Amendment.” United States v. Robinson, 76 M.J. 663, 671, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).

The accused in Blatney (the interlocutory case) petitioned CAAF for review on June 14. Last Thursday CAAF granted review:

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. 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:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be file.

The post-trial appellant in Robinson petitioned CAAF for review on July 12, 2017. That petition is still pending.

CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

Last week CAAF granted review in this Air Force case:

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. 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 raised by appellate defense counsel:

UPON REQUEST BY THE DEFENSE COUNSEL AND UTILIZING A DEFENSE PROPOSED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM “INCAPABLE”?

And the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S INVOCATION OF HIS RIGHT TO COUNSEL IN HIS AFOSI INTERVIEW AT TRIAL OVER DEFENSE OBJECTION, AND IF SO, WHETHER THAT ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant raised a whopping 21 assignments of error, including 15 personally-asserted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the CCA’s opinion is a hefty 40 pages long with a six-page partial dissent. The CCA doesn’t mention the issue specified by CAAF, but it does address the granted issue explaining:

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Back in March the Air Force CCA granted a Government appeal under Article 62 in United States v. Pugh, No. 2016-11 (Mar. 10, 2017) (link to slip op.). The case involves an Air Force major who was convicted of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

Slip op. at 2. AFI 90-507 (available here) (link corrected) is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.

Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced the Major to a dismissal and the court-martial was adjourned. Nineteen days later:

the military judge granted the defense motion to dismiss the Additional Charge and its Specification. In so doing, he issued a six-page ruling. The military judge concluded that the specification did allege an offense and gave fair notice to Appellee. However, the military judge then held that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” The military judge then dismissed the Additional Charge and its Specification.

Slip op. at 2-3. The military judge had the power to do this because the record had not yet been authenticated. See R.C.M. 905(f).

The prosecution appealed and the Air Force CCA reversed, concluding:

As the military judge found, as fact, that it was possible that a “false positive” could result from manufacturing process defects, purchase of hemp products overseas, or purchase of hemp products over the Internet, it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program. Military jurisprudence has long recognized the “disastrous effects” of illicit drug use by members of the armed forces. Similarly, the critical nature of the drug testing program in the “military’s efforts to ferret out drug abuse and thereby insure [sic] the health and readiness of its members” as well as deter drug abuse is also well-established.

Slip op. at 6 (citations omitted) (marks in original) (emphasis added).

Yesterday CAAF granted review:

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. 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 the petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant’s brief on this issue shall be filed within 20 days of the date of this order. Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief. A reply may be filed by Appellant within 5 days of Appellee’s brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

Yesterday CAAF granted review of an oddly-worded issue involving Mil. R. Evid. 412 – the military’s rape shield rule:

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. 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:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN LIMITING THE CROSS-EXAMINATION OF THE COMPLAINING WITNESS UNDER MILITARY RULE OF EVIDENCE 412 ON AN ISSUE SHOWING THAT APPELLANT’S SUBJECTIVE MISTAKE OF FACT AS TO THE COMPLAINING WITNESS’S AGE WAS OBJECTIVELY REASONABLE.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. The appellant’s defense was that he mistakenly believed the boy was 16. To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts soliciting sexual encounters in which he claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Considering this, it’s strange that the granted issue challenges both the CCA’s limitation of cross-examination (when it was the judge) and the invocation of Mil. R. Evid. 412 (when the real issue seems to be relevance).

Another 412 issue on CAAF’s docket for next term is the constitutionally-required exception to the rule, which will be considered in United States v. Robinson, No. 17-0231/AR (grant discussed here).

Earlier this month CAAF granted review of two search and seizure issues in the Air Force case of United States v. Eppes:

No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE SEARCH OF APPELLANT’S PERSONAL BAGS EXCEEDED THE SCOPE OF THE SEARCH AUTHORIZATION WHERE THE AGENT REQUESTED AUTHORITY TO SEARCH APPELLANT’S PERSON, PERSONAL BAGS, AND AUTOMOBILE, BUT THE MILITARY MAGISTRATE AUTHORIZED ONLY THE SEARCH OF APPELLANT’S PERSON AND AUTOMOBILE AND DID NOT AUTHORIZE THE SEARCH OF APPELLANT’S PERSONAL BAGS.

II. WHETHER APPELLANT’S RIGHT TO FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT WAS VIOLATED WHEN THERE WAS NO PROBABLE CAUSE FOR THE 7 DECEMBER 2012 WARRANT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant is an Air Force Captain who was convicted of various offenses primarily involving travel claim fraud. The CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination is supported by the evidence of appellant’s abuse of his official position (Issue II).

CAAF also denied two notable petitions.

First, CAAF denied further review of the Air Force CCA’s opinion that granted a Government Article 62 appeal in United States v. Lutcza, 76 M.J. 698, No. 2016-13 (A.F. Ct. Crim. App. Jan. 18, 2017) (link to slip op.).

Lutcza consented to a search of his cell phone but later revoked that consent. Before the revocation, however, investigators made a copy of the phone’s data. The copy was searched after revocation of consent, revealing incriminating evidence. But the military judge suppressed the evidence, finding that the accused retained a reasonable expectation of privacy in the copy of the data and relying in part on United States v. Dease, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page) (reasonable expectation of privacy in voluntarily-produced urine sample). The CCA reversed, concluding:

Unlike Dease, where the search (i.e., the urinalysis) was performed after consent was withdrawn, in Appellee’s case the search (i.e., the extraction of data using the UFED Touch) occurred during the period of consent—indeed, with Appellee’s participation. SA BS’s later review of the copied information previously obtained was not a search for Fourth Amendment purposes because, unlike the cell phone itself, the copy of the data always belonged to AFOSI, not Appellee, and Appellee had no reasonable expectation of privacy in it.

Lutcza, __ M.J. at __, slip op. at 7-8. The CCA’s opinion doesn’t distinguish between the seizure and the search of the cell phone data (making the copy was likely merely a seizure, with the actual search occurring later), and it bases its ultimate conclusion on numerous civilian cases (see slip op. at 5-6). But Mil. R. Evid. 314(e)(3) – which permits withdrawal of consent to a search at any time and which was the basis of CAAF’s holding in Dease – is a military-specific rule that would likely apply if the making of a copy of the data was merely a seizure and not an actual search. CAAF, however, won’t answer that question now.

Finally, on June 22, CAAF denied review of an Air Force Appellate Government Division petition for reconsideration of the court’s opinion that found an appearance of unlawful command influence and reversed the convictions in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page):

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 76 M.J. 242 C.A.A.F. 2017), and the motion filed by Protect Our Defenders to file an amicuscurie brief out of time in support of Appellee’s petition for reconsideration, it is ordered that said motion filed by Protect Our Defenders to file an amicus curiae brief out of time is hereby denied, and said petition for reconsideration is hereby denied.

Considering that CAAF was unanimously and obviously troubled by the pressure exerted on Lieutenant General Franklin as he performed his duties as convening authority in Boyce (though it was deeply divided on the remedy under the facts of this case) it’s hard to know who exactly Protect Our Defenders was trying to defend with its support of the Appellate Government Division’s petition for reconsideration.

In this post I noted a May 12, 2017, news report about the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Mike posted a follow-up here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, and the NMCCA affirmed in an opinion available here. CAAF summarily affirmed on April 27, 2017.

After CAAF acted, the Admiral signed an affidavit alleging that he wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Lorge’s career.

Yesterday – in an order available here – CAAF vacated its decision and ordered a factfinding hearing:

That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied.

The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).

One noteworthy part of CAAF’s order is that it does not permit disapproval of the conviction now if the DuBay were deemed impracticable. Absent such authorization, the conviction will stand unless CAAF finds a reason to reverse it. And the Admiral will testify if called (or face potentially-severe consequences), as he is still subject to the UCMJ.

Last year, before CAAF’s blockbuster decision 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), the Army CCA decided United States v. Williams, 75 M.J. 621 (A. Ct. Crim. App. Feb. 29, 2016) (discussed here).

In Williams the CCA overruled its own 2006 published decision that required certain instructions when propensity evidence was admitted under Mil. R. Evid. 413/414. Those mandatory instructions were problematic in cases where charged offenses were used for propensity purposes (the practice CAAF later prohibited in Hills). The CCA abandoned the instructions in Williams, but did not mandate any particular replacement.

CAAF then granted review in Williams (discussed here) and summarily reversed (discussed here) in light of Hills.

The CCA affirmed the case again, and now it’s headed back to CAAF.

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Last week CAAF granted review of an interesting pair of issues in an Air Force case with an odd factual background:

No. 17-0347/AF. U.S. v. Robert L. Honea III. CCA 38905. 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. IMMEDIATELY BEFORE THE DEFENSE RESTED ITS CASE, THE MILITARY JUDGE INVITED THE PARTIES’ ATTENTION TO R.C.M. 910, AND DIRECTED THE DEFENSE TO PROVIDE THE MILITARY JUDGE WITH A DRAFT SPECIFICATION OF ASSAULT CONSUMMATED BY A BATTERY. DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE’S COMPLIANCE WITH THE MILITARY JUDGE’S DIRECTIVE CONSTITUTED A DE FACTO DEFENSE REQUEST TO MODIFY THE SPECIFICATION PURSUANT TO R.C.M.603 WHERE THERE IS NO EVIDENCE THAT EITHER THE DEFENSE OR THE CONVENING AUTHORITY WERE AWARE THE CHARGE WAS BEING AMENDED PURSUANT TO R.C.M. 603?

II. THE MILITARY JUDGE DISMISSED SPECIFICATION 2 OF CHARGE II, ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM, FOR FAILURE TO STATE AN OFFENSE, BUT SHE ALLOWED THE GOVERNMENT TO PROCEED TO TRIAL ON THE PURPORTED LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY. DID THE MILITARY JUDGE ERR?

Briefs will be filed under Rule 25.

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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:

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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.