CAAFlog » CAAF Opinions

CAAF decided the certified Navy case of United States v. Clark, __ M.J. __, No. 16-0068/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 17, 2016. In a short opinion the court rejects the certified issues, declining the invitation of the Judge Advocate General of the Navy to impose a standard for a CCA’s treatment of special findings by a military judge and affirming the decision of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

Judge Stucky writes for a unanimous court.

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CAAF decided the Army case of United States v. Caldwell, __ M.J. __, No. 16-0091/AR (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. Finding that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the military offense of maltreatment, CAAF concludes that the military judge’s instructions were not erroneous in this case but also provides specific guidance for instructions in future cases. The court affirms the appellant’s convictions and the decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of one issue in this case (and that issue was personally asserted by the appellant (discussed here)):

Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

A general court-martial composed of members with enlisted representation convicted Sergeant First Class Caldwell, contrary to his pleas of not guilty, of maltreatment in violation of Article 93 and abusive sexual contact in violation of Article 120. The convictions were related to Caldwell’s unwanted sexual advances towards, and inappropriate workplace touchings of, a subordinate. Caldwell was sentenced to reduction to E-1 and a bad-conduct discharge.

Article 93 prohibits cruelty toward, or oppression or maltreatment of a subordinate. To win a conviction for maltreatment, however, the Government need not prove that the accused actually intended cruelty, oppression, or maltreatment, or even that there was actual harm to the alleged victim. Rather, “the essence of the offense is abuse of authority,” United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002), and the accused’s conduct is “measured by an objective standard,” MCM pt. IV, para. 17.c.(2). But in its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Further, the Court held that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” 135 S.Ct. 2011. And so the issue in Caldwell was whether a post hoc objective determination that certain conduct constitutes maltreatment is adequate in the absence of some other degree of culpability in the mind of the accused.

In Monday’s decision, Judge Ohlson explains that such an objective standard is adequate because “there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ, can be said to have engaged in innocent conduct.” Slip op. at 7.

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CAAF decided the Coast Guard case of United States v. Rogers, __ M.J. __, No. 16-0006/CG (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. In a case that questioned whether a member was biased by her professional and personal experiences with sexual assault, CAAF holds that the member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted implied bias. As a result, the court reverses the findings and sentence and the decision of the Coast Guard CCA, authorizing a rehearing.

Chief Judge Erdmann writes for the court, joined by Judges Ryan and Ohlson and Chief Judge Whitney of the United States District Court for the Western District of North Carolina (sitting by designation). Judge Stucky writes separately, concurring in the result.

Electrician’s Mate Third Class Rogers was charged with numerous offenses, including two specifications of sexual assault of a person who was incapable of consenting due to impairment by an intoxicant. The defense challenged a potential member for actual and implied bias based on the member’s duties (that included addressing sexual assault issues and interacting with victims), her personal experiences (her older brother was convicted of child molestation), and her expressed belief that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent.” Slip op. at 7 (quoting record). The military judge denied the challenge, and Rogers was convicted and sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Coast Guard CCA reviewed the member challenge issue and found no error. CAAF then granted review to determine:

Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.

“The core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel.” Slip op at. 2 (citation and marks omitted). Despite the granted issue focusing on the member’s experiences, however, Chief Judge Erdmann’s majority opinion finds implied bias in the member’s erroneous belief that a person who can’t remember consenting necessarily couldn’t consent. And Judge Stucky’s concurring opinion goes even further, finding that the member’s erroneous belief constituted actual bias because the military judge failed to correct it with an appropriate instruction. Ultimately CAAF is unanimous in finding bias in the member’s uncorrected belief that too drunk to remember means too drunk to consent.

This result makes this case a surprise development in the continuing effort to address the issue of competency to consent, our #9 Military Justice Story of 2015.

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CAAF decided the certified Air Force case of United States v. Gay, 75 M.J. 264, No.s 15-0742/AF & 15-0750/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 11, 2016. Recognizing that there are limits on the power of the courts of criminal appeals to grant sentence appropriateness relief, CAAF nevertheless concludes that the Air Force CCA could grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment.

Chief Judge Erdmann writes for a unanimous court.

After being convicted by a general court-martial, Staff Sergeant Gay received a sentence of confinement for six months, total forfeitures, reduction to E-3, and a bad-conduct discharge. He was then confined at a civilian facility where he was initially held in close proximity to a foreign national in violation of the co-mingling provision of Article 12. That provision was addressed last term in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page).

Gay complained (and ultimately received nine days of confinement credit from the convening authority). But Gay was also placed in solitary confinement, seemingly to avoid further co-mingling in violation of Article 12. That solitary confinement formed the basis for a separate complaint of cruel and unusual punishment. The Air Force CCA disagreed that Gay’s solitary confinement constituted cruel and unusual punishment, however the CCA nevertheless reduced the sentence to confinement for three months, reduction to E-3, and a bad-conduct discharge.

The Air Force JAG then certified the case to CAAF, and the court subsequently granted review of a second issue:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

In Wednesday’s opinion CAAF finds that the Air Force court did not abuse its discretion (rejecting the certified issue) and the court does not address the granted issue (because both sides agreed that it was not error for the CCA to fail to remand).

CAAF’s decision in this case is consistent with, but not as broad as, its decision in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), in which the court concluded Article 66(c) commands a court of criminal appeals to conduct a plenary review of a case, including a review to determine whether to leave a trial-stage waiver of an error intact. Rather than relying on a plenary authority, Chief Judge Erdmann focuses on the existence of “a legal deficiency in the post trial conditions to which Gay was subjected.” Slip op. at 9. Specifically:

As the CCA explained, its conclusionwas based, in part, on the fact that solitary confinement was imposed for an improper purpose – Gay did not engage in behavior that would have warranted solitary placement; the conditions of confinement were more severe than what he should have experienced; and the confinement was ordered by an Air Force official to avoid Article 12 violations where an alternative solution was available. While the CCA found that the conditions did not rise to the level of an Eighth Amendment or Article 55 violation, those conditions provide support for the exercise of the CCA’s discretionary sentence appropriateness authority.

Slip op. at 9. Chief Judge Erdmann then ends his opinion for a unanimous court with something of a disclaimer:

In reaching this conclusion, we do not recognize unlimited authority of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of posttrial confinement of which they disapprove. Rather, we hold that the Air Force Court of Criminal Appeals’ decision to grant sentence appropriateness relief in this case was based on a legal deficiency in the post-trial process and, thus, was clearly authorized by Article 66(c).

Slip op. at 10.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the certified Coast Guard Case of United States v. Cooley, 75 M.J. 247, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page) (link to slip op.), on Friday, May 6, 2016. In a lengthy opinion addressing a complicated factual scenario, CAAF affirms the decision of the Coast Guard CCA that dismissed the charges (all but one with prejudice) for violation of Cooley’s right to a speedy trial.

Judge Ryan writes for a unanimous court.

Pursuant to a pretrial agreement Cooley entered conditional pleas of guilty, at a general court-martial composed of a military judge alone, to four offenses: one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

The conditional pleas reserved Cooley’s right to appeal the question of whether he was denied his right to a speedy trial. The court-martial occurred in 2013 – the same year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of Cooley’s Article 10 right to a speedy trial, and also a violation of the R.C.M. 707 speedy trial rule, and it dismissed the charges (three with prejudice, one without). In making those findings the CCA also concluded that pretrial confinement is prejudicial to the rights of an accused no matter how well such confinement is justified. The Judge Advocate General of the Coast Guard then certified the case to CAAF with two issues challenging the CCA’s conclusions, and CAAF subsequently granted review of an additional issue:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

With yesterday’s decision CAAF issues its most significant Article 10 decision in years. While the court rejects the CCA’s conclusion that pretrial confinement is per se prejudicial, and also overrules the substantial information rule, the court reanimates the seemingly dead Article 10 speedy trial right by castigating the Government for its lack of diligence in avoiding pretrial delays and concluding that “this case is the outlier that warrants the interposition of Article 10, UCMJ, to fill the interstice in speedy trial rights left open by R.C.M. 707.” Slip op. at 13.

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CAAF decided the certified Air Force case of United States v. Williams, 75 M.J. 244, No. 16-0053/AF (CAAFlog case page) (link to slip op.) on Tuesday, May 3, 2016. Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, CAAF dismisses the certificate for review as untimely filed.

Judge Stucky writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Senior Airman Williams of rape, contrary to his pleas of not guilty. The approved sentence included confinement for two years, reduction to E-1, and a bad-conduct discharge. On appeal, however, the Air Force CCA reversed the conviction after finding that the military judge improperly admitted evidence of a prior alleged sexual offense under Military Rule of Evidence 413. The CCA’s issued its decision on June 19, 2015.

On July 20, 2015, the Government filed a motion for reconsideration with the CCA. That motion was denied four days later. The Government then filed a second motion for reconsideration on August 3, 2015, challenging the denial of the first motion and “asking the AFCCA ‘to reconsider … its order dated 24 July 2015.'” Slip op. at 2. The CCA denied the second motion on August 10, 2015. Almost two months after that – and 75 days after the first motion for reconsideration was denied – the Judge Advocate General of the Air Force certified the case to CAAF. Williams then moved to dismiss the certification on the basis that it was untimely.

Article 67 gives CAAF jurisdiction over three kinds of cases: Capital cases, cases that a Judge Advocate General orders sent to the court for review (known as certified cases), and cases in which the court grants review for good cause shown upon petition of the accused. Article 67 also sets a 60-day jurisdictional deadline for an accused’s petition for review, but no time limit for a JAG’s certification. However, CAAF’s rules (established pursuant to Article 144) set a 60-day non-jurisdictional deadline for certification by a JAG. Both the petition deadline and the certification deadline begin on the later of the date of the CCA’s decision or its action on a petition for reconsideration.

Writing for a unanimous court Judge Stucky finds that the Air Force JAG’s certification of Williams was untimely because the Government’s second reconsideration motion was not a petition for reconsideration of the substantive decision of the CCA, but rather was a petition for reconsideration of the CCA’s denial of the Government first request for reconsideration.

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Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin. 

CAAF decided the certified Air Force case of United States v. Chin, 75 M.J. 220, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.

Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.

The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with the following issue:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.

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CAAF decided the Air Force case of United States v. Killion, 75 M.J. 209, No.15-0425/AF (CAAFlog case page) (link to slip op.), on April 19, 2016. A divided court holds that the military judge failed to properly instruct the members on the offense of wrongfully using provoking speech because he directed the members to consider the speech from the perspective of a hypothetical average person rather than from the perspective of the actual audience. CAAF reverses the appellant’s conviction for violation of Article 117 and the decision of the Air Force CCA, and remands the case for further review.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Judge Diaz (of the 4th Circuit, sitting by designation). Judge Ohlson dissents, joined by Judge Stucky who also writes a separate dissenting opinion.

CAAF granted review of two issues in this case:

I. Whether appellant’s conviction for provoking speech is legally insufficient because “under the circumstances” his words were not reasonably likely to provoke violence.

II. Whether the military judge’s instructions regarding provoking speech were deficient under the facts and circumstances of appellant’s case.

At a special court-martial the appellant pleaded guilty to drunk and disorderly conduct and unlawful entry in violation of Article 134, and not guilty to resisting apprehension in violation of Article 95 and wrongfully using provoking speech in violation of Article 117. A panel of members with enlisted representation convicted the appellant of the speech offense, acquitted him of resisting apprehension, and then sentenced him to confinement for 14 days, reduction to E-1, a reprimand, and a bad-conduct discharge.

Only the appellant’s speech offense is at issue in CAAF’s review, and it was based on the following facts:

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

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

Slip op. at 3-4 (quoting CCA’s opinion). Further, despite the appellant’s violent actions and offensive language, the medical personnel attending to him “did not consider responding to Appellant violently.” Slip op. 4. Additionally, medical personnel testified that they were trained to handle unruly patients without reacting violently, and that such reactions were highly unusual.

A conviction for wrongfully using provoking speech in violation of Article 117 requires that the Government prove that the speech was provoking or reproachful, and the Manual for Courts-Martial explains that those terms mean “those words or gestures which are used in the presence of the person to whom they are directed and which a reasonable person would expect to induce a breach of the peace under the circumstances.” Part IV, ¶ 42.c(1), Manual for Courts-Martial (2012 ed.). At trial the appellant’s defense counsel asked the military judge to instruct the members that they were to consider the provoking or reproachful nature of the appellant’s speech in the context of the specific facts and circumstances of the appellant’s case (including the training and experience of the medical personnel who heard the words). However, the military judge denied the defense request and instead instructed the members that

The test to apply is whether, under the facts and circumstances of this case, the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation. Proof that a retaliatory act actually occurred is not required.

Slip op. at 5-6 (emphasis in original).

Writing for the majority, Judge Ryan finds that this instruction was erroneous and that the defense request for a different instruction was sufficient to preserve the error and place the burden on the Government to prove the error harmless beyond a reasonable doubt. Then, considering the defense strategy and the Government’s closing argument, she finds that the error was not harmless.

Judge Ohlson’s dissent, however, reviews the instruction for plain error because he concludes that the appellant’s mere request for a different instruction (and failure to object to the instruction actually given) did not preserve the error. Applying the plain error standard – where the appellant has the burden to prove prejudice – he finds the instruction adequate and would affirm the conviction.

Judge Stucky joins Judge Ohlson’s dissent and would also affirm the conviction, but he also writes separately to suggest that the provoking or reproachful nature of speech should be evaluated not from the perspective of the person to whom the words were directed but rather by the situation in which the words were used.

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CAAF decided the certified Air Force case of United States v. Atchak, 75 M.J. 193, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

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

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

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CAAF decided the interlocutory Army case of United States v. Henning, 75 M.J. 187, No. 16-0026/AR (CAAFlog case page) (link to slip op.), on Monday, March 21, 2016. Directly reviewing the military judge’s ruling – without considering the opinion of the Army CCA that reversed the judge – CAAF concludes that the military judge did not abuse his discretion when he excluded DNA evidence. CAAF reverses the CCA’s decision, reinstates the military judge’s ruling, and lifts a stay of the trial proceedings.

Chief Judge Erdmann writes for a unanimous court.

The accused is charged with “waking the alleged victim by touching her breast, then wrongfully penetrating her vagina with his tongue before moving her to the floor and allegedly raping her.” Slip op. at 2. The DNA evidence at issue is from genetic material found in the alleged victim’s underwear that matches a sample from the accused but would also match a sample from approximately 1 in 220 unrelated individuals in the general population.

The DNA analysis was performed by the Kansas City Police Crime Laboratory using a modified version of the Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines. Further, beyond the modified analytical formula, the analysis involved a very small sample of genetic material consisting of “the equivalent to three or four human cells.” Slip op. at 5. According to a defense expert witness, “the slight amount of DNA analyzed was about one-fiftieth the amount recommended for a reliable result.” Slip op. at 4.

The defense challenged the admissibility of the DNA evidence and the military judge concluded that the results were unreliable and suppressed them. However, the Army CCA reversed after concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous. CAAF then stayed the trial proceedings and granted review of a single issue:

Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Chief Judge Erdmann’s opinion for the unanimous court makes two key holdings.

First, despite the wording of the granted issue, Chief Judge Erdmann explains that in an Article 62 appeal CAAF reviews the military judge’s ruling directly, and he notes that “the CCA’s decision and analysis is not relevant to [that] review.” Slip op. at 7 n.13.

Second, considering the record and the military judge’s ruling, Chief Judge Erdmann finds no flaw in either the military judge’s findings of fact or his conclusions of law. Slip op. at 10. However, the court does not go so far as to actually agree with the military judge on the underlying question of reliability:

We do not hold that the KCPCL’s modified formula is unreliable. We only hold it was not an abuse of discretion for the military judge to find the government had not met its burden of showing the formula was reliable in this case.

Slip op. at 11 n.16.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Rapert, 75 M.J. 164, No.15-0476/AR (CAAFlog case page) (link to slip op.), on Friday, March 18, 2016. Sharply divided, the court narrowly holds that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea (“guilty mind”)That requirement saves the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct, and the court affirms the appellant’s conviction and the summary disposition of the Army CCA.

Judge Ohlson writes for the majority, joined by Chief Judge Erdmann and Senior Judge Lamberth. Judge Stucky dissents, joined by Judge Ryan.

The appellant was convicted of numerous offenses at a special court-martial composed of a military judge alone. One of those was communicating a threat against the President of the United States in violation of Article 134, UCMJ. The specification alleged that the appellant:

did, … wrongfully communicate to Keith Kilburn a threat to wit: “When I go back to Missouri for training soon, I am going to pull my robe out and give one order to be carried out to kill that n[****]r. I am not going to serve under that n[****]r and I will ask for this one order to be carried out by me[],” or words to that effect, such communication referring to the President of the United States of America, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

Slip op. at 4 (quoting record) (marks and omission in original). This offense has four elements:

(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

(2) That the communication was made known to that person or to a third person;

(3) That the communication was wrongful; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Slip op. at 4-5 (quoting Manual for Courts-Martial, United States pt. IV, para. 110.b (2012 ed.)).

CAAF granted review of a single issue:

Whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

Affirming the conviction, the majority finds that the third element – that the communication was wrongful – is a subjective element that requires that an accused act with a guilty mind, thereby avoiding the criminalization of otherwise innocent conduct that the Supreme Court addressed in Elonis. The majority thus restates the third element of communicating a threat to read:

(3) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose]

Slip op at 10 (marks in original). The majority also finds that the appellant’s speech had a sufficiently direct and palpable effect on the military mission and environment as to render it unprotected by the First Amendment.

The dissenters, however, see wrongfulness as less distinct, with Judge Stucky noting that “the UCMJ and the explanations of Article 134 offenses in the MCM are littered with the term wrongful.” Diss. op. at 6 (marks omitted). They also see “striking problems” with the majority’s definition of wrongful. Diss. op. at 9. The dissenters would instead impute recklessness into the first element, making it:

That the accused [recklessly] communicated certain language expressing a present determination or in-tent to wrongfully injure the person, property, or reputation of another person, presently or in the future.

Diss op. at 11 (marks in original).

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CAAF decided the certified Navy case of United States v. Pease, 75 M.J. 180, No. 16-0014/NA (CAAFlog case page) (link to slip op.), on Thursday, March 17, 2016. Rejecting both certified issues, CAAF holds that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial). CAAF affirms the decision of the NMCCA that reversed the appllee’s convictions of sexual assault and abusive sexual contact.

Judge Ohlson writes for a unanimous court.

The case involved two female alleged victims who were subordinates of the appellee and who had (separate) sexual encounters with the appellee after drinking significant amounts of alcohol. The appellee was convicted of engaging in sexual activity with the alleged victims when they were incapable of consenting to the conduct due to impairment by an intoxicant and that the appellee knew or reasonably should have known of their impairment. However, the CCA reversed these convictions because it found that the evidence did not support the conclusion that the alleged victims were incapable of consenting, and also because it found that the appellee “reasonably may have believed that they were willing partners in sexual activity.” United States v. Pease, 74 M.J. 763, __, No. 201400165, slip op. at 14 (N-M. Ct. Crim. App. Jul. 14, 2015).

Yet to analyze the evidence the CCA also analyzed the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent. The CCA determined that a person is incapable of consenting when they “lack[] the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make and to communicate a decision about whether they agree[] to the conduct.” Pease, 74 M.J. at 770. This definition, however, was first stated by the CCA and was not provided to the members at trial.

The Judge Advocate General of the Navy then certified two issues to CAAF:

The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?

The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

In a short and tightly written opinion for the unanimous CAAF, Judge Ohlson explains that the CCA was required to determine what the law was before it could fulfill its duty to review the sufficiency of the evidence, and he endorses (with a clarification) the CCA’s definition of the term incapable of consenting.

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CAAF decided the Army case of United States v. Gifford, 75 M.J. 140, No. 15-0426/AR (CAAFlog case page) (link to slip op.), on Tuesday, March 8, 2016. Rejecting the Army CCA’s published decision that found that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense, CAAF applies the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating the order prohibiting such action. The court remands the case to the Army CCA for a new review consistent with its opinion.

Judge Ohlson writes for a unanimous court.

CAAF specified the issue in this case:

Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three specifications of failure to obey a lawful general order (by providing alcohol to persons under the age of 21) and one specification of aggravated sexual assault, in violation of Articles 92 and 120. The members sentenced the appellant to confinement for 45 days, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The charges involved a party that the 29-year old appellant hosted in his barracks room. Four other soldiers were present, all of whom were allegedly under the age of 21 and all of whom were allegedly provided alcohol by the appellant, charged as four violations of a general order. The military judge entered a finding of not guilty to one of these allegations, and the members convicted the appellant of the remaining three. The Army CCA found the evidence supporting one of those three allegations to be insufficient (because there was no evidence in the record of the soldier’s age), but it affirmed the remaining two orders violation convictions (and the sex offense conviction) and the sentence.

At trial the prosecution, defense, and military judge all agreed that to be guilty of violating the order the appellant must have known that the recipients of the alcohol were under 21, and the members were instructed on this requirement prior to deliberating. On appeal the appellant challenged the sufficiency of the Government’s proof of his knowledge of the age of the recipients. Rather than finding the evidence sufficient to prove the appellant’s knowledge (for the remaining two offenses), however, the CCA concluded that knowledge wasn’t an element, reasoning that:

[A] provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.

United States v. Gifford, 74 M.J. 580, __, slip op. at 4-5 (A. Ct. Crim. App. 2015) (citation omitted).

Judge Ohlson’s decision reversing the CCA makes two broad conclusions. First, he explains that the order is not a strict liability offense but instead that it requires the Government prove the appellant’s mens rea with respect to the age of the recipients. Second, he explains that the minimum mental state required to meet the Government’s burden of proof on this issue is recklessness.

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CAAF decided the Marine Corps case of United States v. Wilder, 75 M.J. 135, No.15-0087/MC (CAAFlog case page) (link to slip op.), on Monday, March 7, 2016. In a short and focused decision, CAAF finds no reason to apply an old, judicially-created speedy trial rule. Instead, the court applies the plain language of Rule for Courts-Martial (R.C.M. 707) to find no speedy trial violation in this case, affirming the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Ryan writes for a unanimous court.

CAAF granted review of a single issue:

Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

The factual basis for the case is detailed in my argument preview, but it fades to the background of CAAF’s decision in which Judge Ryan gives a short dissertation on various speedy trial provisions applicable courts-martial and then makes quick work of the granted issue by holding that the plain language of the R.C.M. controls:

The narrow issue for decision in this case is whether, for purposes of a speedy trial violation alleged under R.C.M. 707, the time is calculated by reference to the specific triggers listed in R.C.M. 707(a) or by reference to some other standard such as the “substantial information” rule. Based on the plain language of R.C.M. 707, we do not hesitate to conclude that when analyzing a speedy trial violation under R.C.M. 707, it is the earliest of the actions listed in R.C.M. 707(a) with respect to a particular charge that starts the speedy trial clock for that charge. R.C.M. 707, promulgated in 1984, was a new and different layer of protection against speedy trial violations, see Kossman, 38 M.J. at 260, and for violations alleged under its rubric, its plain language controls. See United States v. Ruffin, 48 M.J. 211, 213 (C.A.A.F. 1998); United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997).

There was no R.C.M. 707 violation in this case. With respect to the Additional Charges, because Appellant was not confined based on them, see supra note 5, the trigger dates from which to measure an alleged violation of R.C.M. 707 for the Additional Charges in this case are the dates of preferral. At most, 111 days passed between preferral and arraignment on Additional Charges I and II, and nineteen days between preferral and arraignment on Additional Charge III.

Slip op. at 6.

Judge Ryan’s opinion avoids an explicit declaration of whether the substantial information rule was abrogated by the promulgation of R.C.M. 707, but her analysis leaves little room for invocation of the rule in any case. The rule was created in 1974 to address situations where an accused was placed into pretrial confinement on some charges and then additional charges were added; it started the Article 10 speedy trial clock (distinct from the future R.C.M. 707 speedy trial clock) for the additional charges on the date when the Government had substantial information to prefer them (and not on the generally later date of actual preferral). Judge Ryan’s opinion only just alludes to the possibility that substantial information (and not actual preferral of charges) might implicate Article 10 for an accused already in pretrial confinement on other offenses:

“The fact that a prosecution meets the 120-day rule of R.C.M. 707 does not directly ‘or indirectly’ demonstrate that the Government moved to trial with reasonable diligence as required by Article 10.” Mizgala, 61 M.J. at 128. Similarly, the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of R.C.M. 707. See Kossman, 38 M.J. at 261.

Slip op. at 5. So a future case could possibly give CAAF a reason to revisit this old rule. But it plays no role in CAAF’s decision in this case.

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Williams, 75 M.J. 129, No. 15-0140/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 23, 2016. Explaining that larceny in violation of Article 121 requires the theft of something from on with a greater possessory interest, and that larceny involving a debit or credit card is typically a larceny from the financial institution even though the true cardholder may suffer a consequence, the court reverses the decision of the Army CCA and the appellant’s convictions of larceny from two soldiers by unauthorized use of their debit cards.

Judge Ryan writes for a unanimous court. Notably, CAAF did not hear oral argument in this case.

CAAF granted review to determine:

Whether Appellant committed larcenies of the property of two soldiers by using their debit card information without authority. See United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010).

The appellant used the debit cards of two fellow soldiers to make various purchases, and he was charged with two specifications of larceny. Each specification alleged that he “did . . . steal money, of a value of more than $500.00, the property of [another soldier]).” Slip op. at 3-4. At trial the appellant moved for a finding of not guilty under R.C.M. 917, asserting that the soldiers were not the victims of the larcenies. The military judge denied the motion.

The Army CCA affirmed the convictions reasoning that the other soldiers were the:

actual victims in this case. Appellant caused the movement of [PFC Irvine’s and SPC Aldrich’s] money from their control, intending to permanently deprive them and actually depriving them of its use and benefit.” 2014 CCA LEXIS 665, at *13, 2014 WL 7228945, at *5 (citing United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014)).

Slip op. at 4-5. Readers may recall a similar analysis by the Army CCA in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), which I analyzed here and concluded was erroneous. CAAF summarily reversed the CCA’s decision in Endsley soon after (discussed here).

Now, reversing the Army CCA and the convictions, Judge Ryan explains:

While it is true that the credit or debit cardholder may also suffer a consequence — such as a bank fee or loss of access to funds in an account — the defendant nonetheless did not obtain money or goods from the cardholder.


The instant case is not an unusual case — there were no agency relationships, no joint accounts, and no contracts. Our unfortunate choice of language in Cimball Sharpton does not change the law, and we urge the Government to cleave to the rule set forth in the MCM in the “usual case.” See MCM pt. IV, para. 46.c.(1)(h)(vi). This is such a case: Appellant’s actions constituted a garden-variety larceny by unauthorized use of debit card information, and the usual rule — that the person who was stolen from, or, in the case of, from whom larceny was attempted, was the merchant from whom the goods were obtained or the bank from whom money was obtained — applies. The account holders here did not own either the goods or the bank funds available to satisfy the debit card purchases.

While it is both intuitively and objectively true that PFC Irvine and SPC Aldrich were “victims” and “suffered the financial loss[es],” see Cimball Sharpton, 73 M.J. at 299, 301–02, because of Appellant, he neither took nor obtained nor withheld anything from them. Though he was the but-for cause of their financial problems, that does not constitute larceny from them. If a defendant did not steal from the person the government names in the larceny specification, the conviction is legally insufficient. See Lubasky, 68 M.J. at 263, 265.

Slip op. at 10-11.