CAAFlog » CAAF Grants

CAAF granted review in three cases last week:

No. 14-0656/AR.  U.S. v. Dana P. BLOUIN.  CCA 20121135.  On consideration of the petition for grant of review of the decision for 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 ACCEPTING APPELLANT’S PLEAS OF GUILTY TO THE SPECIFICATION OF THE CHARGE WHERE PROSECUTION EXHIBIT 4 DEMONSTRATED THAT THE IMAGES POSSESSED WERE NOT CHILD PORNOGRAPHY.

Briefs will be filed under Rule 25.

Phil discussed the Army CCA’s opinion affirming the guilty plea in this post. The CCA’s opinion is available here.

No. 14-0660/AR.  U.S. v. Michael C. BUDKA.  CCA 20120435.  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:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY VIOLATING THE PRINCIPLE OF PARTY PRESENTATION WHEN IT SUMMARILY AFFIRMED THE FINDINGS AND SENTENCE AFTER THE GOVERNMENT CONCEDED THAT THE FACTUAL PREDICATE FOR THE OFFENSE OF AGGRAVATED ASSAULT WAS NOT MET.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO THE SPECIFICATION OF CHARGE II-AGGRAVATED ASSAULT-WHERE THERE IS A SUBSTANTIAL BASIS TO QUESTION THAT THE FORCE USED WAS A MEANS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

Briefs will be filed under Rule 25.

The CCA affirmed without a written opinion.

No. 14-0792/AR.  U.S. v. Collin J. CARTER.  CCA 20121046.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY PREVENTING DEFENSE COUNSEL FROM PRESENTING FACTS OF APPELLANT’S UNLAWFUL PRETRIAL PUNISHMENT AS MITIGATION EVIDENCE AT SENTENCING.

Briefs will be filed under Rule 25.

The CCA affirmed without a written opinion.

About two months ago, in this post, Phil discussed the Army CCA’s decision that rejected a Government interlocutory appeal in United States v. Muwwakkil, No. 20140536 (A. Ct. Crim. App. Aug. 26, 2014) (link to unpub. op.). The appeal was of a military judge’s ruling that stuck the entire testimony of an alleged victim of rape. The military judge struck the testimony because the Government lost the recording of the alleged victim’s testimony at the Article 32 pretrial investigation. Affirming the judge, the CCA reasoned:

The government concedes simple negligence for the loss of the recording, but contends that any finding of gross negligence is clearly erroneous. However, as the government correctly points out, the judge never did make a clear finding of gross negligence. In any event, the judge’s finding that the government’s loss of the required statement was due to its negligence is amply supported by evidence in the record and necessarily triggers the totality of circumstances test described above to determine an appropriate remedy for the Jencks Act violation.

There is no evidence that the government destroyed the statement in “good faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at 376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the government simply disagrees with the judge’s exercise of her discretion as to the proper remedy. Any disagreement any of us might have with the judge’s exercise of discretion under these circumstances is no basis for relief under Article 62. See Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’”) (citation omitted). Indeed the law demands that we respect and defend the reasoned exercise of a trial judge’s discretion in cases such as these and so we do here.

Slip op. at 6-7.

Last Monday, October 20, the Judge Advocate General of the Army certified the case to CAAF:

No. 15-0112/AR. U.S. v. Tahir L. MUWWAKKIL. CCA 20140536. Notice is hereby given that a certificate for 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, and a supporting brief were filed under Rule 22, together with a motion to stay the proceedings on this 20th day of October, 2014, on the following issues:

I. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS APPLICATION OF BOTH THE FEDERAL JENCKS ACT (18 U.S.C. § 3500) AND RULE FOR COURTS-MARTIAL 914.

II. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS DEFERENCE TO THE MILITARY JUDGE’S FINDINGS AND CONCLUSIONS, AS SHE FAILED TO CONSIDER THE TOTALITY OF THE CASE, AND INSTEAD MADE A PRESUMPTION OF HARM BEFORE ORDERING AN EXTRAORDINARY REMEDY. SEE, e.g., KILLIAN v. UNITED STATES, 368 U.S. 231 (1961).

On consideration thereof, it is ordered that the motion to stay proceedings is hereby granted. Appellee will file an answer to the certified issues under Rule 22(b)(1) on or before October 30, 2014

While this is an interesting case on its own facts, the second certified issue is really interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs when it reviews the underlying ruling of the military judge in an interlocutory appeal. See United States v. Wicks, 73 M.J. 93, __, slip op. at 10-11 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page) (“In an Article 62, UCMJ, petition, this Court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial. . .”).

As for the Government’s concern about a presumption of harm, I’ll be interested to see how CAAF applies United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978) (“It suffices to say that, in the present case, the requested materials were not preserved for the record as required by 18 U.S.C s 3500(c) . This factor alone distinguishes it from those cases cited by the Court of Military Review as support for the application of the harmless error rule.”)

On Tuesday CAAF granted review of a rather strongly-worded issue in the Navy case of United States v. Castillo, No. 14-0724/NA:

No. 14-0724/NA. U.S. v. Nancy L. CASTILLO. CCA 201300280. Review granted on the following issue:

Whether the lower court improperly determined that duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.

Briefs will be filed under Rule 25

The case involves a conviction for violating a general order in that the appellant failed to report her arrest on drunk driving charges as required by ¶ 510.6 of OPNAVINST 3120.32c (as amended by NAVADMIN 373/11 (Dec. 8, 2011)), superseded by ¶ 5.1.6 of OPNAVINST 3120.32D (Jul. 16, 2012). The appellant’s DUI arrest was discovered when one of her supervisors saw her name on a courthouse docket.

The NMCCA’s decision affirming the conviction is available here. Sam analyzed that decision in a July post titled: The Return of Self-Reporting? NMCCA Reverses Course on Serianne.

CAAF has declined to intervene in the ongoing Army court-martial of Private Hernandez, in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the Private of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125 due to concern over the application of the defense of mistake of fact as to age. I discussed the Army CCA’s two decisions in the case in this post (where the court ultimately granted the Government a writ of prohibition) and Private Hernandez’s writ-appeal to CAAF in this post. But CAAF’s daily journal for last Wednesday has this entry:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.

On consideration of the writ-appeal petition and motion for stay, it is ordered that said petition is denied without prejudice to Appellant’s right to raise the issues asserted during the normal course of appellate review, and that said motion is denied as moot.

Additionally, CAAF has granted review in another case involving the corroboration rule (last month the court granted review of a corroboration issue in United States v. Adams, 14-0495/AR (discussed here)):

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107. Review granted on the following issue:

Whether the military judge erred by allowing an expert to repeat testimonial hearsay, denying Appellant’s right to confrontation, and if he so erred, whether Appellant’s confession to marijuana use was adequately corroborated.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Bennett is available here. A three judge panel of the CCA considered Appellant’s convictions by a special court-martial composed of officer members, contrary to his pleas of not guilty, of two specifications of unauthorized absence and one specification of wrongful use of marijuana in violation of Articles 86 and 112a, for which he was sentenced to confinement for three months, reduction to E-1, forfeiture of $978.00 pay per month for three months, and a bad-conduct discharge. The panel reversed one of the unauthorized absence convictions “because the government failed to prove that he was absent from the unit alleged.” United States v. Bennett, No. 20111107, slip op. at 2 (A. Ct. Crim. App. Apr. 28, 2014). But then the panel divided sharply over Confrontation Clause issues in the Government’s evidence supporting the drug conviction.

Read more »

A few weeks ago, in this post, I wrote about the Army case of Private Hernandez in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the accused of sexual assault of a child and sexual abuse of a child in violation of Article 120b (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125. At issue is CAAF’s divided opinion in United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), where the court found that the affirmative defense of mistake of fact as to age does not apply in a prosecution for non-forcible sodomy in violation of Article 125. Private Hernandez asserted that affirmative defense and the military judge found that it existed, but did not acquit Private Hernandez outright because of Wilson.

So, the Government sought extraordinary relief from the Army CCA in the form of a writ forcing the military judge to make a finding. A three-judge panel rejected the Government effort, but then the court en banc granted the Government a writ of prohibition. Last week Private Hernandez appealed that decision to CAAF:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.  Notice is hereby given that a writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b).

Additionally, on Thursday of last week CAAF granted review of an issue in the certified Air Force case of United States v. Buford. This case is an interlocutory appeal of a military judge’s ruling suppressing the fruits of searches of electronic devices owned by the accused, who is charged with indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134. The military judge suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts (a Facebook page and an email account) accessed through one of those electronic devices. The CCA affirmed suppression of only the third-party sources, reversing the suppression of evidence discovered on the laptop and thumb drive. I discussed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:

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

I discussed the certification in this post. While the certified issue questions the military judge’s ruling, CAAF’s grant focuses on the decision of the Air Force CCA that partially reversed the judge’s ruling:

No. 14-6010/AF.  United States, Appellant and Cross-Appellee v. Aaron M. BUFORD, Appellee and Cross-Appellant.  CCA 2013-26.  On consideration of the cross-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 for grant of review is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING A.B. CONSENTED TO LAW ENFORCEMENT’S SEARCH OF THE CENTON THUMB DRIVE AND THE DELL LAPTOP.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedures, no further pleadings will be filed.

CAAF granted review and ordered briefs in three cases yesterday.

First is an Air Force case:

No. 14-0166/AF.  U.S. v. Brittany N. OLSON.  CCA S32034.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S HOUSE BECAUSE THE TOTALITY OF THE CIRCUMSTANCES INDICATED THAT APPELLANT’S CONSENT TO SEARCH WAS INVOLUNTARY.

The Air Force CCA’s opinion is available here. The CCA considered the granted issue and determined that Appellant voluntarily consented to the search.

Next is an Army case:

No. 14-0495/AR.  U.S. v. Matthew R. ADAMS, Jr.  CCA 20110503.  Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING THE PORTION OF APPELLANT’S SWORN STATEMENT REGARDING THE [THEFT] OF COCAINE BECAUSE THE GOVERNMENT FAILED TO CORROBORATE, IN ACCORDANCE WITH MILITARY RULE OF EVIDENCE 304(g), THE ESSENTIAL FACT THAT APPELLANT TOOK COCAINE.

The Army CCA’s opinion is available here. The CCA considered the granted issue and rejected it, reasoning that “the issue is not whether the government failed to corroborate whether appellant ‘took cocaine,’ but rather whether the corroborating evidence justifies the inference as to the truth of the essential facts of the confession.” United States v. Adams, No. 20110503, slip op. at 3 (A. Ct. Crim. App. Jan. 29, 2013). The court concluded that “it is reasonable to infer the truth of the essential facts in appellant’s confession to stealing cocaine. This inference is drawn from the following facts: the victim of the cocaine theft shared a similar, yet uncommon, name to a known drug dealer in the local Fort Drum area; a weapon matching the description of the one appellant stated he used in the theft was found in his residence four days after the incident; and the named locations of the meeting place and the theft were in the local area and in close proximity to one another.” Slip op. at 5.

Last is a Marine Corps case:

No. 14-0524/MC.  U.S. v. Troy B. NORMAN.  CCA 201300152.  Review granted on the following issue:

WHETHER THE CONVICTION FOR CHILD ENDANGERMENT BY CULPABLE NEGLIGENCE IS LEGALLY INSUFFICIENT WHEN THE ONLY TESTIMONY OFFERED TO PROVE ITS SERVICE DISCREDITING NATURE WAS ADMITTED IN ERROR.

The NMCCA’s opinion is available here. Appellant was convicted of a single specification of endangering a child in violation of Article 134 charged as service discrediting conduct. Over Defense objection, a noncommissioned officer testified that “anybody who would do that would bring discredit upon themselves, but especially a Marine, because of the high opinion that we are . . . held to by the public.” United States v. Norman, No. 201300152, slip op. at 4 (N-M. Ct. Crim. App. Feb. 20, 2014) (quoting Record at 712) (omission in original). The CCA assumed error in the admission of this testimony but found it harmless, reasoning that “the members did not need the SNCO’s generic testimony to establish the terminal element; in fact, they required no testimony at all regarding this element.” Id.

Notably absent is a grant in a Navy case (Coast Guard cases are rare enough that the absence isn’t notable at this time). As I noted in Part I of my 2013 End o’ Term Stats, CAAF didn’t hear oral argument or issue an authored opinion in a single Navy case last term (and it issued summary dispositions in just three Navy cases). Moreover, there are no Navy cases on CAAF’s master docket (last term ended with 28 cases on the master docket and the three new grants takes the total to 31 – the breakdown is: 17 Air Force, 11 Army, 3 Marine Corps).

The last authored CAAF opinion in a Navy case was Chief Judge Baker’s unanimous opinion in United States v. Brown, 72 M.J. 359 (C.A.A.F. Jul. 15, 2013) (CAAFlog case page). That case was also the last time CAAF heard oral argument in a Navy case – on May 14, 2013.

CAAF granted review in two cases on Monday. The court also called upon Senior Judge Cox to sit in place of Judge Ohlson in Newton (Judge Ohlson recused himself from participation in that case – discussed here).

The first new grant is United States v. Bennitt, No. 12-0616/AR. This is the second trip to CAAF for this case. Last term the court reversed the appellant’s conviction for involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the appellant’s barracks room in 2009. United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page). CAAF then remanded the case to the Army CCA for a sentence reassessment, and the CCA affirmed the original sentence. The CCA did so because it was convinced that even without the manslaughter conviction the appellant would have been sentenced to no less than what he received. This prompted me to write a post titled: Bennitt’s sentence remains the same, in which I predicted that CAAF will tell us how the CCA can possibly be convinced of this fact.

And now CAAF will do that:

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.

Briefs will be filed under Rule 25.

The other new grant is in a case involving the ultimate offense doctrine:

No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO OBEY AN ORDER OR REGULATION.

No briefs will be filed under Rule 25.

I’ve been following the revival of the ultimate offense doctrine since last October when I covered the Army CCA’s opinion in United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Sep. 23, 2013) (unpub. op.), rev’d on recon., 73 M.J. 572 (A. Ct. Crim. App. Jan. 31, 2014) (en banc), and rev. granted, __ M.J. __ (C.A.A.F. Jun. 3, 2014) (CAAFlog case page).

Twinam is the third Phillips trailer granted by CAAF (the others are Nemeth and Amaya), definitively creating an ultimate offense doctrine trailer park. And yes, I do get excited about stuff like this.

This past week CAAF granted review in two cases and ordered briefs on a petition for extraordinary relief.

First, on Tuesday, July 29, CAAF granted review in another ultimate offense doctrine case: United States v. Amaya, No. 14-0558/AR.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF DISOBEYING A LAWFUL ORDER OF A SUPERIOR COMMISSIONED OFFICER.

Last October, in a post titled Is the “ultimate offense doctrine” making a comeback?, I analyzed the Army CCA’s unpublished opinion in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013), in which it applied the doctrine to reverse a guilty plea. A few months later I wrote: The Army CCA slows the return of the “ultimate offense doctrine”, analyzing the CCA’s unpublished decision in United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013), where the court rejected the doctrine. The CCA also reconsidered its decision in Phillips, reversing course in a published decision, United States v. Phillips, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.), and prompting me to write: It was fun while it lasted… the Army CCA puts an end to the comeback of theultimate offense doctrine.

CAAF then granted review in Phillips (case No. 14-0199/AR, grant discussed here) and in a trailer (United States v. Nemeth, No. 14-0491/AR, grant discussed here). The grant in Amaya brings the total number of granted ultimate offense doctrine cases at CAAF to three. The Army CCA’s opinion in Amaya is available here, but it does not address the ultimate offense doctrine.

Next, on Thursday, July 31, CAAF granted review in United States v. Gutierrez, No. 13-0522/AF:

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

III. WHETHER THE FACIALLY UNREASONABLE DELAY IN POST TRIAL PROCESSING DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO SPEEDY REVIEW URSUANT TO UNITED STATES V. MORENO, 63 M.J. 129 (C.A.A.F. 2006).

Briefs will be filed under Rule 25.

The CCA’s latest opinion in this case is available here. This is the second trip to CAAF for this case. The court granted review of the first two issues last September (discussed here), but summarily remanded the case to the CCA in December (discussed here) for consideration of the composition of the panel that considered the case. If you don’t know what this issue is about, you need to check out the case page for United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page).

CAAF’s grant of the speedy trial issue in Gutierrez returns the AFCCA’s delays – part of our #9 military justice story of 2013 – to CAAF in the wake of United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), in which the court found no prejudice. The appointment issue is also returning to CAAF in the upcoming term, in United States v. Jones, No. 14-0057/AF (grant discussed here), in which the court will consider the application of de facto officer doctrine (that it rejected in Janssen)

Finally, CAAF issued a really interesting order on Thursday, July 31, on a petition for extraordinary relief:

No. 14-8014/AF. U.S. v. Mark K. ARNESS. Crim. App. Dkt. No. 2013-30. On consideration of the writ-appeal petition filed by Appellant for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the Judge Advocate General of the Air Force appoint counsel to represent Appellant, and that both parties submit briefs on the following issue:

WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS HAD JURISDICTION TO ENTERTAIN A WRIT OF ERROR CORAM NOBIS WHERE THERE WAS NO STATUTORY JURISDICTION UNDER ARTICLE 66(b)(1), UCMJ, ON THE UNDERLYING CONVICTION AND THE CASE WAS NOT REFERRED TO THE COURT OF CRIMINAL APPEALS BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 69(d)(1), UCMJ, AND WHERE THE COURT OF CRIMINAL APPEALS RELIED ON POTENTIAL JURISDICTION UNDER ARTICLE 69(d), UCMJ, AS ITS BASIS FOR ENTERTAINING THE WRIT (CITING DEW V. UNITED STATES, 48 M.J. 639 (ARMY CT. CRIM. APP. 1998)).

Briefs will be filed with the Court by August 29, 2014.

The AFCCA’s opinion is available here. The appellant is a Lieutenant Colonel who was convicted by a general court-martial of 14 specifications of unauthorized absence, 10 specifications of making false official statements, and 2 specifications of conduct unbecoming, in violation of Articles 86, 107, and 133, UCMJ. He was sentenced to confinement for 11 months and a reprimand. The sentence was below the threshold for automatic review by the Air Force CCA under Article 66(b), and so it was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69(a). The JAG found no error and then denied the appellant’s request for reconsideration. The appellant then filed a writ petition with the AFCCA, asserting 13 errors. The court found that it had jurisdiction to consider the petition, but denied relief:

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s sentence at his court-martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, The Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advocate General under this section” in a court-martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo, 556 U.S. at 913. Since we could have properly reviewed the original proceeding under Article 69, UCMJ, we adopt the position of our fellow service court that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. See Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is not entitled to relief.

United States v. Arness,  No. 2013-30, slip op. at 3 (A.F.Ct.Crim.App. Mar. 11, 2014). Presumably the appellant didn’t petition CAAF just to question the CCA’s jurisdiction to consider his 13 assertions of error.

In  United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (discussed here), the Air Force CCA considered a reserve lieutenant colonel’s convictions of forgery, larceny, and frauds against the United States in connection with his reserve duty that involved, among other things, forging over 500 signatures or initials on over 100 documents, most of which were related to travel orders and reimbursement. The CCA found that only 178 of the 510 forgeries of which the appellant was convicted occurred during a time when the appellant was subject to the UCMJ under Article 2(a). In doing so, the court denied a Government motion to attach documents that the Government asserted would show which days the appellant was actually in an active duty status and subject to the UCMJ.

The Air Force JAG then certified the case to CAAF (certification discussed here) with an issue questioning whether the CCA erred in finding no subject matter jurisdiction and in denying the Government motion to attach documents.

On Friday, July 25, CAAF granted review of an issue that has the potential to moot the Government’s certification:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

The CAAF case number is 14-5007/AF.

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

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

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

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

Order at 6 (citations omitted).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Briefs will be filed under Rule 25.

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

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

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

Briefs will be filed under Rule 25.*

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

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

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

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

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

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

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

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

But in the other, CAAF does something very different:

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

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

Briefs will be filed under Rule 25.

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

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

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

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

No briefs will be filed under Rule 25.

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

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

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

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

Briefs will be filed under Rule 25.

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

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

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

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

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

Id., slip op. at 7.