CAAFlog » CAAF Grants

Yesterday CAAF granted review in this Air Force case:

No. 18-0372/AF. U.S. v. Paul D. Voorhees. CCA 38836. 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 granted on the following issues:

I. WHETHER THE AFCCA ERRED IN FINDING NO PLAIN ERROR DESPITE TRIAL COUNSEL’S ARGUMENT ON FINDINGS THAT PERSONALLY ATTACKED APPELLANT AND TRIAL DEFENSE COUNSEL, COMMENTED ON APPELLANT’S SILENCE, EXPRESSED HIS PERSONAL OPINIONS, BOLSTERED HIS OWN CREDIBILITY, VOUCHED FOR GOVERNMENT WITNESSES, SPECULATED, AND MADE REFERENCE TO FACTS NOT IN EVIDENCE.

II. WHETHER THE AFCCA ERRED IN FINDING THAT THE SPECIFICATIONS ALLEGING VIOLATIONS OF ARTICLE 133, UCMJ, STATED AN OFFENSE DESPITE THE FACT THAT THEY LACK WORDS OF CRIMINALITY OR A MENS REA.

III. WHETHER PLAIN ERROR OCCURRED WHEN THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS THAT MENS REA WAS AN ELEMENT OF AN OFFENSE UNDER ARTICLE 133.

Briefs will be filed under Rule 25.

In 2015 Major Voorhees was convicted of one specification of sexual assault by causing bodily harm and five specifications of conduct unbecoming of an officer and gentleman, and sentenced to confinement for three years, total forfeitures, and a dismissal. On appeal the following year, in an opinion available here, the Air Force CCA found the sexual assault conviction factually insufficient and ordered a sentence rehearing. At the rehearing in 2017 a military judge sentenced Voorhees to a reprimand and to be dismissed. Then, earlier this year, the CCA again affirmed the findings of conduct unbecoming, and it affirmed the revised sentence, in an opinion available here.

On Wednesday CAAF granted review of an Army case questioning the appropriate standard for determining whether a Hills error is harmless:

No. 18-0371/AR. U.S. v. Juventino Tovarchavez. CCA 20150250. 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 ARMY COURT ERRED, FIRST, IN FINDING THAT THIS COURT OVERRULED SUB SILENCIO THE SUPREME COURT HOLDING IN CHAPMAN v. CALIFORNIA, 386 U.S. 18, 24 (1967), AND THIS COURT’S OWN HOLDINGS IN UNITED STATES v. WOLFORD, 62 M.J. 418, 420 (C.A.A.F. 2006), AND IN UNITED STATES v. HILLS, 75 M.J. 350, 357 (C.A.A.F. 2016), AND, CONSEQUENTLY, IN TESTING FOR PREJUDICE IN THIS CASE USING THE STANDARD FOR NONCONSTITUTIONAL ERROR.

Briefs will be filed under Rule 25

Specialist Tovarchavez was charged with sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Read more »

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

On Friday CAAF granted review in this Army case:

No. 18-0305/AR. U.S. v. Michael C. Gleason. CCA 20150379. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT ERRED BY AFFIRMING A NOVEL SPECIFICATION COVERED BY AN ENUMERATED ART. 134, UCMJ OFFENSE.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here but does not discuss this issue or the facts in detail. The novel Article 134 offense appears to be interfering with an emergency call. I’m going to engage in some pure speculation and say that the enumerated offense that might cover the conduct is either disorderly conduct (¶ 73) or communicating a threat (¶ 110). Or both.

On Thursday CAAF granted review in this Air Force case:

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. 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 APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here and explains that the appellant – a Lieutenant Colonel – was convicted contrary to his pleas of not guilty of numerous specifications of conduct unbecoming an officer and a gentleman for engaging in indecent online conversations. “The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children.” Slip op. at 2. The appellant separately pleaded guilty in federal district court to wrongfully accessing child pornography.

The CCA concluded:

Here, Appellant chose to express his obscene “fantasies” via the medium of online chats and emails, and analogizes that activity to private conversations within his home which he asserts is protected free speech. Under Moore, such speech is not afforded constitutional protection.

The tension between Moore and Hartwig relied upon by Appellant has no bearing on the issue before us. Here, the court must determine whether Appellant’s online chats and emails were sufficient to constitute conduct unbecoming an officer. The content of Appellant’s online discussions were clearly indecent. The charged conduct need not actually damage the reputation of the military, instead it only has to have a tendency to do so. Although Appellant’s identity as a military member was revealed in the course of the criminal investigation, he did not have to outwardly identify himself as a member of the military for his actions to constitute conduct unbecoming an officer. Appellant’s conduct was disgraceful to himself and the reputation of the military.

Slip op. at 7 (internal citations omitted).

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. The topic remains at CAAF, with a decision earlier this year in United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page) (re-affirming that negligent dereliction of duty is punishable under Article 92), and with a (second) grant of review in United States v. Tucker, No. 18-0254 (CAAFlog case page).

On Tuesday CAAF granted review in another case involving mens rea:

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The case seems to involve the mens rea required to commit sexual assault by causing bodily harm, where the bodily harm is a non-consensual sexual act, in violation of Article 120(b)(1)(B). The facts of the case, however, make it a poor vehicle for that issue. Private First Class McDonald was convicted of sexual assault and conspiracy to commit sexual assault based on an allegation that he concealed his identity in order to have sex with a woman who believed that she was having sex with another soldier. Considering such deliberate action, the CCA concluded:

Here, appellant’s misconduct of having sexual intercourse with DJ without her consent was at the very least reckless, but more likely purposeful. . . .

Based on the evidence contained in the record, it is clear appellant exploited the cover of darkness to conceal his identity from DJ as he switched places with PV2 Thomas and engaged in nonconsensual sexual intercourse with DJ. We thus conclude appellant’s misconduct was done knowingly if not, at the very least, reckless and that any lack of instruction on the scienter of recklessness was not plain error.

Slip op. at 5.

In other words, if the CCA’s recitation of the facts is even remotely accurate, it’s hard to see how McDonald’s conduct was otherwise lawful.

The Fourth Amendment generally requires law enforcement obtain a warrant prior to seizing or searching property, and the warrant must be based on probable cause. Any evidence discovered in violation of those requirements may be excluded from trial. Such exclusion is not required by the Fourth Amendment, but rather is a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through [a] deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). That exclusionary rule is codified in the Military Rules of Evidence with the caveats that such exclusion must “result[] in appreciable deterrence,” and “the benefits of such deterrence [must] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3).

But there are exceptions. One exception – also codified in the Military Rules of Evidence – involves a warrant (or military search authorization) that is somehow flawed. If a warrant is issued by competent authority with a substantial basis for finding probable cause, but is later determined to be invalid, the exclusionary rule does not apply if law enforcement “reasonably and with good faith” relied on the warrant to conduct the search or seizure. Mil. R. Evid. 311(c)(3). This good faith exception to the exclusionary rule recognizes that there is no deterrent effect, and so no justification for the practical cost of excluding evidence of wrongdoing, when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). In other words:

If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

United States v. Leon, 468 U.S. 897, 919 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, however, doesn’t seem to involve the officer actually conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if a warrant is invalid and there was no substantial basis to find probable cause to issue it, then the good faith exception does not apply no matter what the officer thought.

It’s a rule that swallows the exception, because an officer might rely on a warrant to conduct a search, and that reliance might be objectively reasonable, but the exception won’d apply if later analysis reveals that there was no basis for finding probable cause to issue the warrant. CAAF addressed this issue in United States v. Carter, and observed that the substantial basis requirement in Mil. R. Evid. 311(c)(3)(B) would – if applied as written – “effectively abolish the good faith exception in military practice.” 54 M.J. 414, 421 (C.A.A.F. 2001). CAAF then decided to interpret the requirement narrowly:

“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of Mil. R. Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.

Carter, 54 M.J. at 422. Put differently, if the officer exercising the warrant objectively believes that there was a substantial basis for finding probable cause to issue the warrant, then the officer acts in good faith and the exception may apply. If, however, the officer knows or should know that there wasn’t a substantial basis to find probable cause, but nevertheless exercises the warrant, then the officer is not acting in good faith and the exception won’t save the evidence from exclusion.

That interpretation was relatively settled until CAAF unsettled it in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page). Hoffmann was accused of committing indecent liberties with children, and a military commander authorized a search of Hoffman’s electronic devices for child pornography based on “an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” 75 M.J. at 123. CAAF rejected that intuitive link as a basis for probable cause and invalidated the authorization (and reversed Hoffmann’s convictions). But CAAF also rejected application of the good faith exception, concluding that:

the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception.

75 M.J. at 128. That conclusion is contrary to the holding from Carter that focused the analysis on what the law enforcement officer knew or should have known about the basis for finding probable cause (and not on whether there actually was a substantial basis for finding probable cause).

CAAF acknowledged its inconsistency the following year, in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), where it summarily concluded that the Army Government Appellate Division failed to establish that the good faith exception applied while observing (in a footnote) that:

We recognize the tension between our discussion of the good-faith doctrine in Hoffmann, 75 M.J. at 127-28, and Carter, 54 M.J. at 419-22. We leave for another day resolution of this tension because we conclude that under either understanding of the good-faith doctrine the Government has not met its burden of establishing this exception to the exclusionary rule in Appellant’s case.

United States v. Nieto, 76 M.J. 101, 108 n.6 (C.A.A.F. 2017).

That day has come:

No. 18-0365/MC. U.S. v. Calvin E. Perkins, Jr. CCA 201700077. 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 issues:

I. WHETHER THIS COURT’S HOLDING IN UNITED STATES v. CARTER AS APPLIED BY THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS IN THIS CASE, INSTEAD OF THE PLAIN READING OF MRE 311(c) THIS COURT APPLIED IN UNITED STATES v. HOFFMANN, CONTROLS IN ANALYZING THE APPLICABILITY OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE.

II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF APPELLANT’S HOME.

The NMCCA issued a published decision in Perkins (available here) that concluded:

Carter’s approach to MIL. R. EVID. 311(c)(3) is inconsistent with the rule’s plain language, and Hoffmann’s plain-language approach is therefore inconsistent with Carter. . . .

We conclude that we are still bound by Carter. We are reluctant to assume that the CAAF has tacitly reversed its own precedent. Hoffmann made no mention of Carter and did not purport to change any precedents binding on this court. . . .

United States v. Perkins, __ M.J. __, __, No. 201700077, slip op. at 13-14 (N.M. Ct. Crim. App. Jul. 12, 2018). The CCA then found that the good faith exception applies to the case and affirmed the findings and the sentence, but it observed that its “choice of authorities determines the outcome of this issue” and “under Hoffman, the evidence does not qualify for the exception.” Slip op. at 10-11. Furthermore, it “respectfully suggest[ed] that the CAAF resolve the tension between Carter and Hoffmann in favor of Hoffmann and the plain language of MIL. R. EVID. 311(c)(3).” Slip op. at 20 (emphasis added).

The JAG’s certification of this issue – that the Government Division won at the CCA – is unusual, but not unprecedented. The Navy JAG previously certified an issue at the request of the defense as recently as 2016. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page).

The long-running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, will be reviewed by CAAF for a third time.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

On appeal, the Navy-Marine Corps reversed Hutchins’ convictions because it found that Hutchins’ military defense counsel was improperly released from the case upon his end of active duty service (decision analyzed here). Hutchins was released from confinement while the Judge Advocate General of the Navy certified the case to CAAF. But CAAF reversed the CCA’s decision in 2011, finding the release of Hutchins’ defense counsel to be harmless (noted here) (link to slip op.), and Hutchins was returned to confinement.

After CAAF’s 2011 decision, the Navy-Marine Corps reviewed Hutchins’ case for a second time, and it affirmed the findings and the sentence (noted here). CAAF then granted review (noted here) and, in 2013 it reversed Hutchins’ convictions because military investigators unlawfully reinitiated communications with Hutchins after he requested an attorney (leading to a confession that was erroneously admitted at trial) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

CAAF authorized a rehearing, a rehearing was ordered, and Hutchins was again convicted.

During Hutchins’ second trial, the prosecution offered evidence of uncharged acts as proof of Hutchins’ plan to commit the charged acts. Some of those uncharged acts, however, were the basis for charges of which Hutchins was found not guilty at his first trial. Hutchins’ defense counsel opposed the prosecution’s tactic at the second trial, arguing that the prior acquittal barred the subsequent use of the acts. The military judge disagreed, and the Navy-Marine Corps CCA affirmed with a lengthy analysis that ultimately relied on Mil. R. Evid. 404(b) to hold that the uncharged acts (including acts implicating the acquittals) were “proof of motive, intent, preparation, plan, and an absence of mistake or accident with regard to the charges against [Hutchins], particularly conspiracy to commit murder and murder.” United States v. Hutchins, No. 200800393, slip op. at 23 (N.M. Ct. Crim. App. Jan. 29, 2018) (link to slip op.).

CAAF will now review that issue:

No. 18-0234/MC. U.S. v. Lawrence G. Hutchins III. CCA 200800393. 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 WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OF CONDUCT FOR WHICH APPELLANT HAD BEEN ACQUITTED AT HIS FIRST TRIAL.

Briefs will be filed under Rule 25.

Earlier this month – in an action noted here – SCOTUS remanded the case of Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.

The Court remanded the case for CAAF to consider it in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), in which CAAF reinterpreted the statute of limitations for the offense of rape of an adult.

Yesterday CAAF issued an order agreeing to do that, and more:

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. On further consideration in light of the remand from the Supreme Court of the United States, it is ordered that the above-entitled case is granted review on the following issues:

I. DOES THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, APPLY RETROACTIVELY TO OFFENSES COMMITTED BEFORE ENACTMENT OF THE AMENDMENT BUT FOR WHICH THE THEN EXTANT STATUTE OF LIMITATIONS HAD NOT EXPIRED?

II. CAN APPELLANT SUCCESSFULLY RAISE A STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL?

Briefs will be filed under Rule 25.

On Monday CAAF granted review in this Navy case:

No. 18-0304/NA. U.S. v. Lamar A. Forbes. CCA 201600357. 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 NAVY COURT ERRED IN HOLDING THAT APPELLANT WAS PROVIDENT TO SEXUAL ASSAULT BY BODILY HARM DUE TO HIS FAILURE TO INFORM HIS SEXUAL PARTNERS OF HIS HIV STATUS.

Briefs will be filed under Rule 25.

The NMCCA issued a published opinion, 77 M.J. 765, that I analyzed here.

The appellant – Aviation Maintenance Administrationman Second Class (E-5) Forbes – pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm in violation of Article 120 (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners. The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s  holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery.

74 M.J. at 68. I assisted in drafting a petition for reconsideration that asked CAAF to reconsider the issue of consent and its reliance on Canadian law, but the court declined to do so at the time.

Congress repealed the offense of sexual assault by causing bodily harm under Article 120(b)(1)(B) (and the related definition of bodily harm in Article 120(g)(3)) was repealed in Section 5430 of the Military Justice Act of 2016, however Congress simultaneously created a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” My read of the NMCCA’s decision in Forbes is that it will apply equally to the new offense, because it is based on CAAF’s judicially-created requirement of meaningful informed consent:

Therefore, Gutierrez’s conduct—engaging in otherwise-consensual sexual activity without telling his partners that he had HIV—included an “offensive touching to which his sexual partners did not provide meaningful informed consent” because “‘[w]ithout disclosure of HIV status there cannot be a true consent.'”

Forbes, 77 M.J. at __ , slip op. at 5 (quoting Gutierrez, 74 M.J. at 68 (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.))).

CAAF recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT’S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. 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 granted on the following issue:

THE MILITARY JUDGE FOUND APPELLANT GUILTY OF VIEWING CHILD PORNOGRAPHY. BUT ALL OF THE ALLEGED CHILD PORNOGRAPHY APPELLANT ALLEGEDLY VIEWED WAS FOUND IN UNALLOCATED SPACE OR A GOOGLE CACHE. IS THE EVIDENCE LEGALLY SUFFICIENT?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.

CAAF granted review in two cases on Tuesday. First, a Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. 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 PROSECUTION OF APPELLANT VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY PROHIBITION.

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA opinion is available here. The due process issue is based on the fact that the appellant was held for possible trial past the end of his enlistment, without notice, for 300 days. The CCA rejected the argument that the lack of notice severed jurisdiction, holding that:

The appellant’s argument is based upon a faulty premise. . . . even if the appellant had received notice that he was being retained on active duty involuntarily from the outset, and assuming he objected to his continued retention, he still would not have been discharged and personal jurisdiction would have continued. Moreover, the appellant cites no authority for the proposition that failing to properly notify a service member that he or she is being retained on active duty against their will amounts to a deprivation of constitutional due process that severs jurisdiction.

Slip op. at 8 (internal citation omitted).

Correction. The double jeopardy issue seems to be based on a successive prosecution. In 2015 the appellant pleaded guilty to involuntary manslaughter in the Commonwealth of Virginia and was sentenced to confinement for three years (with all but six months suspended). He was then prosecuted for the same offense by the military, pleaded guilty to involuntary manslaughter and obstruction of justice at a general court-martial, and received an approved sentence of confinement for 39 months, reduction to E-1, and a dishonorable discharge.

Those facts suggest that this case involves the separate sovereigns doctrine and that this case is a Gamble trailer (noted here).

Second, an Army case:

No. 18-0267/AR. U.S. v. Jason A. Kohlbek. CCA 20160427. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY MISCONSTRUING MIL.R.EVID. 707 AND PROHIBITING APPELLANT FROM PRESENTING EVIDENCE RELEVANT TO APPELLANT’S POST-POLYGRAPH STATEMENT.

Briefs will be filed under Rule 25.

The Army CCA opinion is available here. The CCA explained that:

Appellant argues that the military judge erred in prohibiting him from telling the court-martial that his admissions were made after being subjected to a polygraph and being told his answers were deceptive. As Mil. R. Evid. 707 clearly prohibits this information, appellant argues that the rule is unconstitutional, at least as applied to his case. Appellant argues that being deprived of this information misled the factfinder about the circumstances under which he confessed.

Slip op. at 6. The court found no error, concluding that “Appellant testified at the suppression motion that he confessed because he wanted to end the interview as soon as possible. . . . appellant’s stated explanation for confessing, (wanting to end the interrogation), did not require disclosure of the polygraph testing.” Slip op. at 7.

On Friday CAAF granted review in this Army case:

No. 18-0247/AR. U.S. v. Hector Nicola. CCA 20150781. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE OF INDECENT VIEWING IN VIOLATION OF ARTICLE 120c, UCMJ, WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. It does not address this conviction in depth, but it looks like the appellant was convicted of indecent viewing the private area of the alleged victim by taking a shower with her when she was incapacitated by alcohol. The CCA’s opinion observes:

Appellant’s last assignment of error asserts the evidence is both legally and factually insufficient to support a conviction for wrongfully viewing SPC AA’s private area, as appellant was acquitted of sexual assault. We see nothing inconsistent with the panel acquitting appellant of sexually assaulting SPC AA while at the same time convicting appellant of wrongfully viewing SPC AA based on her testimony of appellant being in the shower with her. See United States v. Rosario, 76 M.J. 114, 117-18 (C.A.A.F. 2017).

Slip op. at 2 n.2.

The offense of indecent viewing in violation of Article 120c(a) occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014) (discussed here), the Navy-Marine Corps CCA held that a conviction of this offense requires that the accused view the real-life private are of the alleged victim (viewing a recording is not sufficient). CAAF later rejected a certified issue that challenged the authority of a CCA to order a sentence-only rehearing, in United States v. Quick, 74 M.J. 332 (C.A.A.F. Aug. 11, 2015) (CAAFlog case page).

Mens rea was the #8 Military Justice Story of 2017 in part because in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (per curiam) (CAAFlog case page), CAAF explained that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA (75 M.J. 872) that found that the term states a negligence standard.

The case involved a guilty plea to two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing Tucker “that the necessary mens rea requirement for this Article 134, UCMJ, offense was ‘negligence.'” 76 M.J. at 257.

Early this year the Army CCA issued a second decision, again published, and again affirming the conviction on the basis that “the appellant’s admitted mens rea of simple negligence, when combined with the requirement that appellant’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted) (link to slip op.). Senior Judge Campanella wrote for the majority of a three-judge panel. Judge Salussolia dissented, asserting that “we are bound to apply a mens rea higher than simple negligence for this offense because nothing in statute or under customs of the service requires otherwise.” 77 M.J. at 707. 

Yesterday, CAAF granted review:

No. 18-0254/AR. U.S. v. Steven M. Tucker. CCA 20150634. 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 ARMY COURT ERRED IN HOLDING THAT THE MINIMUM MENS REA REQUIRED UNDER CLAUSES 1 AND 2 OF ARTICLE 134, UCMJ, TO SEPARATE WRONGFUL FROM INNOCENT CONDUCT IS SIMPLE NEGLIGENCE.

Briefs will be filed under Rule 25.

Yesterday CAAF granted review in this Army case.

No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE PLAINLY ERRED BY ALLOWING THE TRIAL COUNSEL TO MISSTATE THE LAW AND ARGUE THAT THE PANEL SHOULD BASE ITS VERDICT ON SHARP TRAINING.

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment/Assault Response and Prevention program.

The CCA’s opinion is available here but it does not address this issue.

CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.

First, the certified case:

No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. 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 issues:

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:

In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.

Slip op. at 23. For the waiver issue, the CCA found:

To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.

Slip op. at 19.

Next, the granted case:

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. 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 the petition is granted on the following issues:

I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.

II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here and explains that:

Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.

Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).