CAAFlog » CAAF Grants

On Monday CAAF granted review – but ordered no additional briefing – in the following case:

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. 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 HIS DISCRETION WHEN HE CONCLUDED APPELLANT’S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.

No briefs will be filed under Rule 25.

The offense at issue is sexual assault in violation of Article 120(b)(2) (2012). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, and was sentenced to confinement for three years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge. The Air Force CCA affirmed the conviction in an unpublished decision available here.

The maximum authorized punishments under Article 120 are an issue because after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments (pursuant to Article 56) for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications). That failure prompted one military judge to rule that the maximum authorized punishment for a violation of Article 120(b) was the jurisdictional limit of a summary court-martial (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1). The Government appealed that decision and the NMCCA reversed in United States v. Commander Booker, Military Judge, 72 M.J. 787 (N-M. Ct. Crim. App. 2013) (discussed here), holding that by applying the sentence-determination provisions of R.C.M. 1003(c)(1)(B), the authorized punishment included a dishonorable discharge and confinement for at least 30 years. CAAF then denied review without prejudice to the right to raise the issue during normal appellate review (and then the accused pleaded guilty and apparently did not raise the issue again).

In Chero, the Air Force CCA adopted the NMCCA’s analysis from Booker:

Our colleagues in a sister-service court analyzed this same issue of the maximum imposable sentence for an offense that occurred after the enactment of the current Article 120, UCMJ, but before the publication of the President’s Executive Order establishing the maximum sentence for a sexual assault against an individual who was asleep, unconscious, or otherwise unaware. United States v. Booker, 72 M.J. 787 (N.M. Ct. Crim. App. 2013), appeal denied sub nom United States v. Schaleger, 73 M.J. 92 (C.A.A.F. 2013) (summary disposition). That court concluded that the maximum authorized punishment included 30 years confinement and a dishonorable discharge. Id. at 807. We find their reasoning highly persuasive and concur with both our Navy-Marine Corps Court colleagues and the trial judge.

United States v. Chero, No. 38470, slip op. at 7 (A.F. Ct. Crim. App. Apr. 28, 2015).

Last week CAAF granted review of the following issue in an Army case:

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309.  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 FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT’S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).

Briefs will be filed under Rule 25.

In Elonis (link to slip op.), the Supreme Court reversed a civilian defendant’s conviction of four counts of violating 18 U.S.C. § 875(c), which criminalizes using “any communication containing any threat . . . to injure the person of another.” At trial, Elonis asked for a jury instruction that would have required the Government to prove that he intended to communicate a true threat. The judge refused to give that instruction, and instead instructed the jury that the Government need only prove that a reasonable person would have foreseen that the statements would be interpreted as a threat. On appeal, the Third Circuit affirmed. Writing for the Court and reversing the Third Circuit, Chief Justice Roberts concluded that:

The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

Slip op. at 16.

I can’t find an opinion in Rapert on the Army CCA’s website, so I assume that the court summarily affirmed the conviction. But communicating a threat is an Article 134 offense, meaning that the basis for criminal liability is not that a threat was communicated, but rather that the circumstances were prejudicial to good order and discipline or service discrediting. See MCM, Part IV, ¶ 110. For Rapert, a footnote in a recent CAAF opinion looms large:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) (CAAFlog case page).

Last week CAAF granted review in the following case:

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193.  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 APPELLANT’S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE “UNDER THE CIRCUMSTANCES” HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.

II. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS REGARDING PROVOKING SPEECH WERE DEFICIENT UNDER THE FACTS AND CIRCUMSTANCES OF APPELLANT’S CASE.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant’s conviction for using provoking speech in violation of Article 134 was based on the following events:

After a night of excessive drinking, the appellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, the appellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. The appellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.

Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, the appellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douchebags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

United States v. Killion, No 32193, slip op. at 2 (A.F. Ct. Crim. App. Jan. 28, 2015) (marks in original). The CCA rejected both of the issues granted by CAAF, and also rejected an as-applied constitutional challenge (raised on appeal for the first time) based on the appellant’s assertion that his speech was not fighting words. The asserted instructional error addresses a tailored instruction offered by the defense that would have had the members review the appellant’s speech subjectively: considering “the occupation, education, and training of the listener” to determine whether the listener would be provoked by the speech. Id., slip op. at 4.

CAAF granted review in two cases yesterday. The first was previously certified to CAAF by the Judge Advocate General of the Coast Guard:

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389.  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 GOVERNMENT VIOLATED APPELLANT’S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

Briefs will be filed under Rule 25.

I analyzed the CCA’s opinion in this January post titled The Coast Guard CCA raises Article 10 from the dead. I noted the JAG’s certification in this post. And in this post I noted Cooley in the context of CAAF’s grant of review in the Marine Corps case of United States v. Wilder, No. 15-0087/MC. In Wilder, CAAF will consider whether the substantial information rule persists after the promulgation of R.C.M. 707.

Between Cooley and Wilder, Article 10 might be dragged back from the afterlife next term…

The second grant involves application of the maximum sentence determination provisions of R.C.M. 1003(c)(1)(B):

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. 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:

AT THE TIME OF APPELLANT’S ALLEGED SEXUAL ABUSE OF A CHILD OFFENSE, THE PRESIDENT HAD NOT SET THE MAXIMUM PUNISHMENT FOR THE OFFENSE. THE MILITARY JUDGE USED A LATER-ENACTED EXECUTIVE ORDER TO SET THE MAXIMUM PUNISHMENT, EVEN THOUGH IT INCREASED THE CONFINEMENT RANGE FROM ONE YEAR TO FIFTEEN YEARS. WAS THE EX POST FACTO CLAUSE VIOLATED?

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this March post titled The Air Force CCA grapples with R.C.M. 1003(c)(1)(B).

Article 46(a) provides that:

(a) Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

Emphasis added. The production of evidence requested by the members of a court-martial is at issue in a new CAAF grant:

No. 15-0372/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. 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 specified by the Court:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ALLOWED THE ADMISSION OF ADDITIONAL EVIDENCE DURING DELIBERATIONS BUT ALSO DENIED APPELLANT THE OPPORTUNITY TO ATTACK THE ACCURACY OF THAT EVIDENCE BEFORE THE FACTFINDER.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The opinion notes:

Lastly, we consider the appellant’s argument that the military judge erred when he admitted muster reports the members requested during their deliberations over defense objection. He first contends that the muster reports do not satisfy the requirements of a record of regularly conducted activity under MILITARY RULES OF EVIDENCE 803(6), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). He next argues that the muster reports are testimonial and that admitting those records during deliberations without the ability to confront the records custodian or present further argument in front of the members violates his constitutional right of confrontation. We disagree with both contentions.

Slip op. at 10-11.

CAAF granted review in two cases on Thursday, May 14, 2015. The first involves an issue of disparate punishment:

No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345.  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 APPELLANT’S PUNISHMENT WAS “HIGHLY DISPARATE” WHEN COMPARED TO THE CO-ACCUSED.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website.

The second involves a specified issue that question’s the court’s jurisdiction to consider the case:

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.  On consideration of Appellee’s motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:

WHETHER APPELLANT’S PETITION FOR GRANT OF REVIEW SHOULD BE DISMISSED FOR LACK OF JURISDICTION WHEN THE COURT OF CRIMINAL APPEALS ENTERTAINED AN UNTIMELY FILED MOTION FOR RECONSIDERATION FOR “GOOD CAUSE,” BUT DENIED THE MOTION ON OTHER GROUNDS, AND APPELLANT FILED A PETITION FOR GRANT OF REVIEW WITH THIS COURT UNDER ARTICLE 67, UCMJ, MORE THAN 60 DAYS AFTER THE ORIGINAL DECISION OF THE COURT OF CRIMINAL APPEALS, BUT WITHIN 60 DAYS OF THE FINAL DECISION ON THE MOTION FOR RECONSIDERATION. SEE, UNITED STATES v. RODRIGUEZ, 67 M.J. 110 (C.A.A.F. 2009); UNITED STATES v. SMITH, 68 M.J. 445 (C.A.A.F. 2010).

Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.

In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a deeply divided CAAF held that the court lacks jurisdiction to consider a petition for grant of review filed by an appellant beyond the 60-day period during which Article 67(b) states that an appellant “may” file such a petition. Judge Erdmann wrote for the court in Rodriguez, joined by Judges Stucky and Ryan. Then-Chief Judge Effron and then-Judge Baker both dissented. You can read some analysis of the case in posts here and here.

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a timely petition for reconsideration at a CCA, the 60-day time period to petition CAAF for review begins after the CCA completes its action on the petition for reconsideration.

LaBella finds what might be the only daylight between Smith and Rodriguez, and CAAF’s order for expedited briefings is particularly noteworthy in light of the fact that Chief Judge Baker’s 15-year term on the court will end in September.

Readers may also recall that after it was reviewed by the Supreme Court, the Denedo case ended with a missed deadline.

I analyzed the CCA’s decision in this post. CAAF granted review last Thursday:

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545.  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 ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT SECOND INFANTRY DIVISION POLICY LETTER NUMBER 8 (11 JANUARY 2010), WHICH PROHIBITS SERVICE MEMBERS WHO ARE 21 YEARS OF AGE AND OLDER FROM DISTRIBUTING ALCOHOL TO PERSONS UNDER 21 FOR THE PURPOSES OF CONSUMPTION, DID NOT CONTAIN AN ELEMENT THAT APPELLANT KNEW THAT THE PERSON TO WHOM DISTRIBUTION WAS MADE WAS UNDER 21 YEARS OF AGE, AND THEREFORE IMPOSED STRICT LIABILITY FOR SUCH ACTIONS.

Briefs will be filed under Rule 25.

CAAF granted review in the following case on Thursday, April 30:

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284.  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 APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF TWO SOLDIERS BY USING THEIR DEBIT CARD INFORMATION WITHOUT AUTHORITY. SEE UNITED STATES v. LUBASKY, 68 M.J. 260 (C.A.A.F. 2010).

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. I discussed that opinion in this post last September, but my focus was on the CCA’s finding of plain error in the military judge’s questions to a sentencing witness. However, on the larceny issue, the CCA found:

Electronic commerce and the related increased possibility of larceny by identity-theft have perhaps prompted the following 2002 amendment to the Manual for Courts-Martial: “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them.” MCM, pt. IV, ¶ 46.c(1)(h)(vi). The Drafter’s Analysis includes the proviso that “[a]lternative charging theories are also available . . . . The key under Article 121 is that the accused wrongfully obtained goods or money from a person or entity with a superior possessory interest.” MCM, UCMJ art. 121 analysis at A23-15–A23-16 (internal citations omitted).

Our superior court has clearly affirmed both of these principles. See United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014); United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010). In Cimball Sharpton, CAAF considered a larceny by credit card and held that an alternative charging theory—naming a victim other than the merchant or bank—was viable. 73 M.J. at 301-02. In Lubasky, CAAF stated: “Under Article 121, UCMJ, larceny always requires that the accused wrongfully obtain money or goods of a certain value from a person or entity with a superior possessory interest.” 68 M.J. at 263 (emphasis added). The CAAF also recently reaffirmed that the “victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” Cimball Sharpton, 73 M.J. at 299 (citing Lubasky, 68 M.J. at 263-64).

Appellant now argues that in Specifications 1 and 2 of Charge VI, “the unauthorized use of the debit card information was a common ‘obtaining-type larceny by false pretense’ where the property owner would be either the bank or merchants depending upon who suffered the loss.” (Emphasis added). We partially agree to the extent that appellant draws our focus to the person or entity who suffers the loss in a larceny. We disagree with appellant that the banks or merchants were the only potential victims of appellant’s misconduct. Indeed, PFC BI and SPC JA were actual victims in this case. Appellant caused the movement of their money from their control, intending to permanently deprive them and actually depriving them of its use and benefit. Like in Cimball Sharpton, we hold that under the facts of this case, alternative charging theories were available and PFC BI and SPC JA were properly described as victims in the contested larceny specifications.

Slip op. at 8.

I think it very likely that the Army CCA will be reversed, for reasons I’ve written about repeatedly (such as in my analysis of the Army CCA’s decisions in Endsley and Conway).

Yesterday CAAF granted review of two issues in the Marine Corps case of United States v. Hoffman, No. 15-0361/MC:

No. 15-0361/MC. U.S. v. Matthew P. Hoffmann. CCA 201400067. 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 issues:

I. WHETHER THE SEARCH AND SEIZURE OF THE PERSONAL ITEMS OF AN INDIVIDUAL WHERE THE SEARCH WAS INITIALLY GRANTED BY CONSENT, BUT LATER REVOKED BEFORE THE SEIZURE OF ITEMS, VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION.

II. THE APPELLANT WAS CHARGED WITH CRIMES INVOLVING CHILD ENTICEMENT. THE NMCCA FOUND A SEARCH FOR A SEPARATE CRIME, CHILD PORNOGRAPHY, WAS SUPPORTED BY PROBABLE CAUSE BASED SOLELY ON THE CHILD ENTICEMENT ALLEGATIONS. IN DOING SO, THE NMCCA RELIED ON A MINORITY OPINION IN FEDERAL CASE LAW AND APPLIED IT INCORRECTLY. SHOULD THIS COURT REVERSE?

Briefs will be filed under Rule 25.

Sam analyzed the NMCCA’s opinion in this post.

CAAF’s daily journal for yesterday includes the following entry:

No. 15-0178/MC. U.S. v. Marco A. Hernandez. CCA 201300313.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY NOT STAYING OR DISMISSING THE PROCEEDINGS IN LIGHT OF THE IMPROPER PANEL SELECTION BY THE CONVENING AUTHORITY.

No briefs will be filed under Rule 25.*

* Judge Ryan has recused herself in this case.

The NMCCA’s opinion in the case is available here. The CCA rejected the appellant assertion that the convening authority improperly excluded members on the basis of rank. CAAF is considering a similar issue (though one based on different facts) in United States v. Ward, No. 15-0059/NA (CAAFlog case page).

I have no information about why Judge Ryan recused herself from this case.

Yesterday CAAF granted review of two issues in a Marine Corps case:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. 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 issues specified by the Court:

I.    WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

II.   WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

Other recent IAC cases on CAAF’s docket include:

  • United States v. Spurling, __ M.J. __, No. 15-0228/MC (C.A.A.F. Feb. 6, 2015) (summary disp.) (discussed here).
  • United States v. McIntosh, No. 14-0685/AF (rev. granted Jan. 15, 2015) (discussed here).
  • United States v. Engler, __ M.J. __, No. 15-0077/MC (C.A.A.F. Dec. 3, 2014) (summary disp.) (discussed here).

Yesterday CAAF granted review in two cases; in both the Government prevailed on interlocutory appeals at the Army CCA:

No. 15-0294/AR. U.S. v. Christopher S. Schloff. CCA 20140708.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN EXPANDING THE DEFINITION OF A “SEXUAL CONTACT” TO A TOUCH ACCOMPLISHED BY AN OBJECT CONTRARY TO THE PLAIN LANGUAGE OF ARTICLE 120(G)(2).

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I discussed the Army CCA’s opinion in Schloff in a post titled: Can touching with a stethoscope constitute sexual contact?

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issues:

I.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY VIOLATION AND REVERSING THE MILITARY JUDGE’S REMEDY OF DISMISSAL.

II.   WHETHER THE ARMY COURT OF CRIMINAL APPEAL APPLIED AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION, OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I analyzed the Army CCA’s opinion in Stellato in a post titled: The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”

CAAF granted review in two cases yesterday. The first involves an issue specified by the court:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.  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 specified by the Court:

WHETHER THE PROMULGATION OF RCM 707 ABROGATED THE “SUBSTANTIAL INFORMATION” RULE ORIGINATED IN UNITED STATES v. JOHNSON, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

Briefs will be filed under Rule 25.

I discussed the CCA’s opinion in this post. The substantial information rule from Johnson addressed the presumption of an Article 10 speedy trial violation established in United States v. Burton, 44 C.M.R. 166 (1971), for pretrial confinement in excess of 90 days. But when an accused was confined for some offenses, and then additional offenses were discovered, the 90-day clock for the additional offenses began when “the Government had in its possession substantial information on which to base the preference of charges.” Johnson, 48 C.M.R. at 601. President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock), and President Bush modified the rule to the current 120-day standard in 1991. Burton was then overruled in United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

In Wilder, the NMCCA held that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial substantial standard – in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), cert. for rev. filed, __ M.J. __ (Feb. 23, 2015) (discussed here). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Because of this, I think Wilder is a great candidate for amicus filings from the Army, Air Force, and Coast Guard appellate divisions.

The second grant from yesterday involves a lesser included offense issue:

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN DECIDING A QUESTION OF LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT WHEN IT HELD THAT ASSAULT CONSUMMATED BY BATTERY WAS A LESSER INCLUDED OFFENSE TO ABUSIVE SEXUAL CONTACT AND SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

I discussed the Coast Guard CCA’s decision in United States v. Sullivan, No. 001-69-13 (C.G. Ct. Crim. App. Sep. 25, 2014), in this post, commenting that the case was notable for a number of reasons including that it involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA under Article 69(d).

Now the case goes to CAAF:

No. 15-0186/CG. U.S. v. Michael E. Sullivan. CCA 001-69-13. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE GOVERNMENT CARRIED ITS BURDEN OF PROVING THAT THE CONVENING AUTHORITY’S CATEGORICAL EXCLUSION OF ALL FLAG OFFICERS WAS HARMLESS.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING CHALLENGES FROM BOTH PARTIES TO HIS IMPARTIALITY BASED ON PRIOR PERSONAL RELATIONSHIPS WITH INDIVIDUAL MILITARY COUNSEL, THE ACCUSED, TRIAL COUNSEL, SEVERAL MEMBERS, SEVERAL WITNESSES, AND THE STAFF JUDGE ADVOCATE.

Briefs will be filed under Rule 25.

When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.

The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE