CAAFlog » CAAF Grants

On Tuesday CAAF granted review in this Army case:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. 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 APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION.

Briefs will be filed under Rule 25.

A decision issued by the CCA in 2018 (discussed after the jump) is available here.

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In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. 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 CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

Last week CAAF granted review in this Marine Corps case:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. 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 granted on the following issues:

I. DID ADMISSION OF AN ALLEGEDLY POSITIVE DIATHERIX LABORATORIES TEST FOR GONORRHEA WITHOUT TESTIMONY AT TRIAL OF AN WITNESS FROM DIATHERIX, VIOLATE THE SIXTH AMENDMENT CONFRONTATION CLAUSE?

II. DID THE LOWER COURT ABUSE ITS DISCRETION IN ADMITTING AN ALLEGED POSITIVE DIATHERIX TEST RESULT FOR GONORRHEA IN A CHILD’S RECTAL SWAB-WHERE DIATHRIX FAILED TO FOLLOW ITS OWN PROCEDURES AND THE RESULT WAS OF NEAR ZERO PROBATIVE VALUE?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The appellant was convicted of numerous offenses including rape of a child. The evidence supporting the rape conviction included a positive test of the child for gonorrhea; a sexually-transmitted disease that the appellant told military law enforcement he had and that he encouraged them to test the child for in the belief that the test would exonerate him. Swabs were taken from the child and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. But the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that urethral and rectal culture tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The CCA considered and rejected the first granted issue, concluding that the Diatherix lab report was nontestimonial (and so could be admitted as business records) because the test was conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

The CCA’s opinion also references the underlying claim in the second granted issue – that the Diatherix laboratory failed to follow its own procedures – in a larger analysis of the military judge’s ruling that admitted the test result. The CCA affirmed the military judge’s ruling admitting the result.

Last week CAAF granted review in this Army case:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. 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 issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?

II. IF THE MILITARY JUDGE ERRED, UNDER WHAT STANDARD SHOULD THIS COURT ASSESS PREJUDICE?

III. WAS THERE PREJUDICE UNDER THE APPLICABLE STANDARD OF REVIEW?

Briefs will be filed under Rule 25.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), and it was last considered by CAAF in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), in which the court unanimously affirmed the trial-stage ruling of a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation.

The Army CCA’s opinion in Clark is available here.

On Monday – the last day of the 2018 term – CAAF granted review in this Marine Corps case:

No. 19-0376/MC. U.S. v. R. Bronson Watkins. CCA 201700246. 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 granted on the following issues:

I. A CONFLICT OF INTEREST EXISTS WHERE THE INTERESTS OF AN ATTORNEY AND DEFENDANT DIVERGE ON A MATERIAL FACTUAL OR LEGAL ISSUE, OR A COURSE OF ACTION. THREATS BY REGIONAL TRIAL COUNSEL AND A REGIONAL TRIAL INVESTIGATOR TOWARDS CIVILIAN DEFENSE COUNSEL CREATED A CONFLICT OF INTEREST BETWEEN CIVILIAN COUNSEL AND APPELLANT. DID THE MILITARY JUDGE ERR IN DENYING CIVILIAN COUNSEL’S MOTION TO WITHDRAW?

II. THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO RETAIN COUNSEL OF HIS OWN CHOOSING. BEFORE TRIAL, AND AFTER HIS CIVILIAN COUNSEL MOVED TO WITHDRAW—CITING A PERCEIVED CONFLICT OF INTEREST—APPELLANT ASKED TO RELEASE HIS CIVILIAN COUNSEL AND HIRE A DIFFERENT COUNSEL. DID THE MILITARY JUDGE ERR BY DENYING THIS REQUEST?

III. DID THE LOWER COURT ERR IN RATIFYING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S REQUEST FOR CONFLICT-FREE COUNSEL, WHERE IT: (A) FOUND THE REQUEST WAS IN “BAD FAITH,” BASED ON ALLEGED MISBEHAVIOR BY APPELLANT OCCURRING BEFORE THE RTC’S UNEXPECTED THREATS; AND, (B) TREATED THE MILITARY JUDGE’S FINDING THAT APPELLANT’S REQUEST FOR COUNSEL WAS “OPPORTUNISTIC,” AS A FINDING OF FACT INSTEAD OF A CONCLUSION OF LAW?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. It reveals that:

The appellant was represented by a civilian defense counsel, retired Marine Corps judge advocate Mr. W. After an angry off-the-record exchange between Mr. W and the Regional Trial Counsel, LtCol K, Mr. W moved to withdraw from the case and the appellant stated that he no longer wished to be represented by Mr. W. The military judge did not permit Mr. W to withdraw, and the appellant claims on appeal that Mr. W was encumbered by a conflict of interest.

Slip op. at 3. The CCA found no conflict of interest and affirmed.

Last Wednesday CAAF granted review in this Army case:

No. 19-0382/AR. U.S. v. Gerald R. Carter, Jr. CCA 20160770. 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 assigned issue:

I. WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO INTRODUCE EXCULPATORY EVIDENCE IN THEIR POSSESSION.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO ORDER A MISTRIAL FOR THE CHARGES AND SPECIFICATIONS.

And the following personally asserted issue:

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF HISTORICAL CELL-SITE LOCATION INFORMATION. See CARPENTER v. UNITED STATES, 138 S. Ct. 2206 (2018).

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The IAC issue is based on evidence that the appellant’s brother – not the appellant – committed the charged offenses, and the fact that the appellant’s military defense counsel did not introduce that evidence at trial. The mistrial issue (while not discussed in the CCA’s opinion) involves an intentional discovery violation by the prosecution that was exposed during the trial. The judicial error issue is the Grostefon issue related to the admission of cell-site information.

Disclosure: I represented the appellant in my personal capacity during review of his case by the Army CCA.

CAAF granted review in this Army case on Tuesday:

No. 19-0384/AR. U.S. v. Michael J. Guinn. CCA 20170500. 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 issues:

I. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S FIRST AND FIFTH AMENDMENT CLAIMS EVEN WHILE ENTERTAINING HIS EIGHTH AMENDMENT CLAIMS.

II. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

No briefs will be filed under Rule 25.

The Army CCA’s website is down, but the CCA’s opinion is available here.

The case is a trailer to United States v. Jessie, No. 19-0192/AR (grant discussed here). Jessie challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after it was challenged.

CAAF granted review in two cases yesterday.

The first is this Navy case, in which the court ordered that no briefs be filed:

No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. 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 granted on the following issues:

I. DID THE CONVENING AUTHORITY VIOLATE EQUAL PROTECTION WHEN HE SHOWED A PATTERN OF CONVENING AT LEAST THREE ALL WHITE MEMBERS’ PANELS FOR GENERAL COURTS-MARTIAL, INCLUDED RACE AND GENDER IDENTIFIERS IN MEMBERS’ QUESTIONNAIRES, REMOVED FIVE MINORITY MEMBERS FROM APPELLANT’S ORIGINAL CONVENING ORDER, AND ULTIMATELY ISSUED A CONVENING ORDER CONSISTING OF ONLY WHITE, MALE MEMBERS FOR APPELLANT’S COURT-MARTIAL, WHERE APPELLANT WAS AN AFRICAN-AMERICAN OFFICER?

II. DID THE DEFENSE SHOW SOME EVIDENCE OF UNLAWFUL COMMAND INFLUENCE IN THE FORM OF COURT PACKING WHEN IT SHOWED THE CONVENING AUTHORITY REMOVED FIVE MINORITY MEMBERS AND REPLACED THEM WITH FIVE WHITE MEN, CONVENED A MEMBERS’ PANEL WITH ALL WHITE MEN IN THIS CASE AND AT LEAST TWO OTHER CASES WITH AFRICAN-AMERICAN ACCUSED, AND INCLUDED RACE AND GENDER IDENTIFIERS ON THE MEMBERS’ QUESTIONNAIRES?

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA’s opinion is available here. Based on CAAF’s order that no briefs be filed, the case looks to be a trailer to United States v. Bess, No. 19-0086/NA (grant discussed here).

The second is this Army case:

No. 19-0297/AR. U.S. v. Adrian Gonzalez. CCA 20160363. 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 assigned issue:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY REASSESSING THE SENTENCE AFTER DISMISSING THE MOST EGREGIOUS SPECIFICATION, AND OFFERING THE CONVENING AUTHORITY THE OPTION TO APPROVE AN EXCESSIVE SENTENCE FOR THE REMAINING SPECIFICATION IN LIEU OF A REHEARING.

And the following issue specified by the Court:

WHETHER APPELLANT WAIVED OR FORFEITED HIS OBJECTION TO THE ARMY COURT’S INSTRUCTIONS TO THE CONVENING AUTHORITY.

Briefs will be filed under Rule 25.

The Army CCA’s opinion (prior to remand) is available here, but I can’t find an opinion post-remand. The granted issue raises substantially the same question as is raised in United States v. Wall, No. 19-0143/AR (last noted here).

Back in May, CAAF granted review in this Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. 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 specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

Briefs will be filed under C.A.A.F. R. 25.

I noted the grant in this post.

Yesterday, CAAF asked for additional briefs on whether the issue it specified is ripe for review:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the briefs of the parties on the issue granted review on April 29, 2019, it is ordered that the parties file supplemental briefs on the following additional issue:

WHETHER THE GRANTED ISSUE IS RIPE FOR REVIEW BY THIS COURT AT THIS TIME.

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

On Monday CAAF granted review in this Army case:

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. 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 MILITARY JUDGE ABUSED HER DISCRETION BY PERMITTING THE UNIT’S SHARP REPRESENTATIVE TO TESTIFY THAT “WHEN A PERSON SAYS ‘NO’ IT MEANS STOP, WALK AWAY.”

Briefs will be filed under Rule 25.

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

No opinion is available on the Army CCA’s website (indicating that the CCA summarily affirmed).

Yesterday CAAF granted review in this Army case:

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. 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 SPECIFICATION OF CHARGE II, ALLEGING THE COMMUNICATION OF INDECENT LANGUAGE TO A CHILD IN VIOLATION OF ARTICLE 134, UCMJ, WAS PREEMPTED BY ARTICLE 120b.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here. It does not address preemption.

The preemption doctrine states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. 2018) (CAAFlog case page).

Avery was convicted of communicating indecent language to a child under the age of 16, as an enumerated offense under Article 134. That offense criminalizes the communication of indecent language – without regard to the age of the recipient or any criminal intent – under circumstances that are either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, however the MCM authorizes a grater punishment when the recipient is under the age of 16.

Article 120b (2012), in contrast, criminalizes any lewd act with a child, and the definition of a lewd act includes (among other things):

intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person

and

any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

CAAF’s review, it seems, will address whether the Government can use the Article 134 offense of indecent language to prosecute an accused for indecent communications when it can’t prove an intent to abuse, humiliate, degrade, or arouse, or when it can’t prove the tender age of the recipient, or both. If CAAF says it can’t, then that would likely cast doubt on the viability of other well-settled Article 134 offenses, such as self-injury without intent to avoid service (see malingering; see also United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)) and negligent homicide (see murder and manslaughter; see also United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011), United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011), and A Mobius Strip of Citation).

Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. Put differently, if a witness testifies about something in court, the rule allows a prior (out-of-court) statement by that same witness to be admitted to prove the thing asserted.

The rule has long allowed a prior statement to be admitted as non-hearsay when the prior statement predated an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. For example, just a few weeks ago in United States v. Frost, 79 M.J. __ (C.A.AF. Jul. 30, 2019) (CAAFlog case page), CAAF addressed the admission of a prior statement by an alleged child victim of rape. The statement was made to a psychotherapist, but a majority of CAAF found that the defense had alleged that the child was improperly influenced by her mother before the child talked to the psychotherapist. Accordingly, the statement was wrongly admitted.

But the federal rule was amended in 2014 to add a new sub-section: 801(d)(1)(B)(ii). The new subsection makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). Specifically, the new subsection states that a prior consistent statement is not hearsay when it is offered:

to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness; the Advisory Committee note on the amendment explains that:

The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

The amendment was incorporated into the MCM in 2016 (noted here).

The Army CCA addressed the change in a recent published decision in United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). Writing for a unanimous three-judge panel of the CCA, Judge Wolfe explained that the requirement that the prior statement be admitted to rehabilitate the declarant’s credibility is an important one:

Part (ii) requires rehabilitation of the credibility of a witness.

“Mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” McCaskey, 30 M.J. at 192. A prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.

In general, to be rehabilitative, a prior consistent statement must address the manner in which the witness’ credibility was attacked. In Pierre, the witness was impeached for omitting key facts in his interview notes. The implication was that the witness had either made up the key facts after the interview or had an inaccurate memory about what was said in the interview. 781 F.2d at 334. A formal report that contained the key facts, created shortly after the interview, tended to rebut both implications, and therefore rehabilitated the witness’ credibility.

. . .

In other words, a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden. McCaskey, 30 M.J. at 192; see also Adams, 63 M.J. at 697 n.5.

78 M.J. at 787. Then, applying that law to a prior statement (a videotaped interview with military investigators) by the alleged victim in Finch, Judge Wolfe explained that the statement was admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) because the defense had implied that the alleged victim’s in-court testimony was inconsistent with her prior statements to the investigators, and that implication “was factually rebutted by watching the interview.” 78 M.J. at 791.

Last week CAAF granted review:

No. 19-0298/AR. U.S. v. David M. Finch. CCA 20170501. 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 MILITARY JUDGE ERRED IN ADMITTING OVER DEFENSE OBJECTION THE VIDEO-RECORDED INTERVIEW OF AH BY CID BECAUSE IT WAS NOT A PRIOR CONSISTENT STATEMENT UNDER MIL.R.EVID. 801(d)(1)(B).

Briefs will be filed under Rule 25.

Update: The NMCCA seems to have reached the same conclusion about the meaning of Mil. R. Evid. 801(d)(1)(B)(ii) in United States v. Norwood, __ M.J. __ (N-M. Ct. Crim. App. Aug. 9, 2019) (link to slip op.).

In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in 1018 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes. Writing for a 7-2 majority of the Court, Justice Breyer explained that:

As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.

139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.

Last week CAAF cited Rehaif to grant further review in this Army case:

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:

WHETHER THE MENS REA OF “KNOWINGLY” APPLIES TO THE CONSENT ELEMENT OF ARTICLE 120c(a)(2), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. § 920c(a)(2) (2016).

Briefs will be filed under Rule 25.

The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).

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On Monday CAAF docketed this certification by the Judge Advocate General of the Air Force:

No. 19-0398/AF. U.S. v. Chase J. Easterly. CCA 39310. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR BY FAILING TO INSTRUCT THE PANEL SUA SPONTE REGARDING THE IMPACT OF A PUNITIVE DISCHARGE ON APPELLEE’S POTENTIAL PERMANENT DISABILITY RETIREMENT, WHERE APPELLEE DID NOT REQUEST SUCH AN INSTRUCTION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 28th day of August, 2019.

The AFCCA’s opinion is available here. The appellee, Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, however, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.

Next, on Tuesday CAAF granted review in this Air Force case:

No. 19-0230/AF. U.S. v. Jordan R. Muller. CCA 39323. 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 RULE 15.5 OF THE AIR FORCE COURT OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE IS INVALID BECAUSE IT CONFLICTS WITH THE UNIFORM CODE OF MILITARY JUSTICE, THIS COURT’S PRECEDENT, THE JOINT COURTS OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE, THE RECENTLY UPDATED JOINT RULES OF APPELLATE PROCEDURE, AND THE PRIOR AND CURRENT APPELLATE RULES OF THE OTHER SERVICE COURTS OF CRIMINAL APPEALS.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO RAISE ISSUES ON APPEAL WHEN IT DENIED HIS TIMELY REQUEST TO FILE A SUPPLEMENTAL BRIEF ON ISSUES ARISING DURING REMAND PROCEEDINGS.

III. WHETHER A COURT OF CRIMINAL APPEALS MUST REQUIRE CERTIFICATES OF CORRECTION TO BE ACCOMPLISHED, VICE ACCEPTING DOCUMENTS VIA A MOTION TO ATTACH, WHEN IT FINDS A RECORD OF TRIAL TO BE INCOMPLETE DUE TO A MISSING EXHIBIT.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is here, but it is a summary disposition. I can, however, report that the first two issues involve an AFCCA rule (Rule 15.5) that gives an appellant only 10 days to move to file a supplemental brief after a case is remanded for anything other than a rehearing, and that the third issue was raised by the Government Division (in its response to the appellant’s petition) as a challenge to the AFCCA’s action that denied the Government Division’s motion to attach a missing prosecution exhibit (the AFCCA instead remanded the case for a certificate of correction under R.C.M. 1104(d), leading to the situation addressed in the first two issues).

CAAF granted review in two cases in Tuesday, both from the Army. The first case is:

No. 19-0158/AR. U.S. v. Malcolm R. Turner. CCA 20160131. 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 SPECIFICATION OF CHARGE I ALLEGING AN ATTEMPTED KILLING FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPLICITLY, OR BY NECESSARY IMPLICATION, ALLEGE THE ATTEMPTED KILLING WAS UNLAWFUL.

Briefs will be filed under Rule 25.

The CCA issued an unpublished decision (available here) that includes the following information:

the specification alleged that:

Appellant, did at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation, SPC CSG by means of shooting her with a loaded firearm and causing grievous bodily harm.

Appellant argues that the specification does not allege that the premeditated killing was unlawful. See Article 118(b)(1)(c), UCMJ; MCM (2012 ed.), pt. IV, ¶43.b. Appellant contends that servicemembers in the armed forces lawfully commit premeditated killings of enemy combatants on the battlefield. As such, a killing must be unlawful in order for it to be an offense under the UCMJ.

Slip op. at 13. The CCA rejected the claim, concluding that “the Specification of Charge I alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” and observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” Slip op. at 15.

CAAF reviewed the need to explicitly allege words of criminality (in the context of Articles 133 and 134) in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (CAAFlog case page) (not addressed because case resolved on other grounds), and United States v. Voorhees, __ M.J. __, No. 18-0372/AF (C.A.A.F. 2019) (CAAFlog case page) (use of terms such as inappropriate or unprofessional found sufficient).

The second case is:

No. 19-0192/AR. U.S. v. Lamont S. Jessie. CCA 20160187. 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 issues:

I. WHETHER THE ARMY COURT ERRED BY CONSIDERING MILITARY CONFINEMENT POLICIES BUT REFUSING TO CONSIDER SPECIFIC EVIDENCE OF APPELLANT’S CONFINEMENT CONDITIONS.

II. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S CONSTITUTIONAL CLAIMS.

III. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

Briefs will be filed under Rule 25.

The CCA issued an unpublished but en banc decision, available here.

The case challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after the challenge was made.

A majority of the CCA concluded that consideration of the issue (raised in post-trial submissions) “is not an appropriate use of our Article 66(c) authority.” Slip op. at 1. A number of judges dissented, however, on the basis that “the majority adopts an unnecessarily restrictive view of Article 66(c),” and that “by failing to address the alleged error, the majority conducts a flawed review of sentence appropriateness and post-trial delay.” Slip op. at 22.

CAAF recently addressed the Article 66 power of the CCAs, affirming that the power is exceptionally broad, in United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (CAAFlog case page) (CCA may grant relief for waived error), and United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018) (CAAFlog case page) (CCA may reduce mandatory minimum punitive discharge as inappropriate).