CAAFlog » CAAF Opinions

CAAF decided the Air Force case of United States v. Hardy, __ M.J. __, No. 17-0553/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 5, 2018. A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach). The decision both extends and affirms the reasoning of the Air Force CCA that found waiver in a published decision almost one year ago today (analyzed here).

Judge Maggs writes for the court, joined by Judges Ryan and Sparks. Chief Judge Stucky concurs. Judge Ohlson dissents. This is Judge Maggs’ first opinion of the court.

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term agreeing to waive all waivable motions.

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provision waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, however, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017). CAAF then granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

In today’s opinion four judges agree that the Air Force court was right and any unreasonable multiplication of charges was waived by Hardy’s unconditional plea and failure to object at trial. But Judge Maggs and the majority reach that result with an analysis that Chief Judge Stucky does not join. Judge Ohlson, in turn, doesn’t reach that result at all, concluding that a waiver must be more explicit than the mere failure to object at trial.

Read more »

CAAF decided the Army case of United States v. Kelly, __ M.J. __, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).

“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

The court later specified a second issue involving improper argument by the trial counsel:

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.

Read more »

CAAF decided the Navy case of United States v. Andrews, __ M.J. __, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

The prosecution’s closing argument, however, crossed the line, and the Navy-Marine Corps CCA found that the trial counsel committed severe prosecutorial misconduct during that argument. Nevertheless, the CCA concluded that the misconduct did not prejudice Andrews. CAAF then granted review of a single issue questioning that no-prejudice conclusion:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Judge Sparks’ opinion for the unanimous CAAF affirms the CCA’s action, but only after a lengthy and unexpected analysis of why the issue was not waived by the failure of Andrews’ defense counsel to object to some of the improper arguments at trial. That analysis is unexpected because the question of whether the failure to object to improper argument waives, rather than merely forfeits, any error was not clearly raised by the granted issue in this case, but rather is clearly raised in a different case still pending before CAAF: United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued – by me for Major Burris – on Thursday, March 22, 2018).

Nevertheless, the Navy-Marine Corps Appellate Government Division asserted waiver in its brief to CAAF and during oral argument (previewed here) (audio here), and CAAF rejects it.

Read more »

CAAF decided the Air Force case of United States v. Barker, __ M.J. __, No. 17-0551/AF (CAAFlog case page) (link to slip op.), on Monday, May 21, 2018. Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1101A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Accordingly CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Chief Judge Stucky, who dissents (because he would find the issue waived by the pretrial agreement).

Airman First Class (E-3) Barker pleaded guilty, pursuant to a pretrial agreement, to possession and viewing child pornography. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit in its entirety.

On appeal, the Air Force CCA considered the letters under two different rules: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. Nevertheless, the CCA concluded that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF then granted review of two issues challenging the CCA’s conclusion that the January statement was admissible and the improper consideration of the other statements was harmless:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Writing for the majority, Judge Ryan concludes that the January statement was not admissible as a statement of a crime victim under R.C.M. 1001A (and does not address whether it might have been admissible as evidence in aggravation under R.C.M. 1001(b)(4) because that issue was not before the court). But the majority concludes that the erroneous admission of the statement was harmless.

Chief Judge Stucky dissents – even though he agrees with the majority’s conclusions that the statement was improperly admitted under R.C.M. 1001A but was harmless – because he finds that a term of the pretrial agreement served to waive this issue and precludes Barker from raising it on appeal. Accordingly, Chief Judge Stucky would would vacate the grant of review as being improvidently granted.

Read more »

CAAF decided the Air Force case of United States v. Eppes, __ M.J. __, No. 17-0364/AF (CAAFlog case page) (link to slip op.), on April 10, 2018. Resolving challenges to two separate searches, the court unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan writes separately, concurring in part and in the result. Senior Judge Effron dissents in part and would reverse the pleas.

CAAF granted review of two issues:

I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags.

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bags; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.

CAAF unanimously rejects the second issue, with Judge Sparks writing that “the December 7, 2012, search of Appellant’s residence was supported by probable cause and was therefore valid.” Slip op. at 7. Emphasizing that “probable cause is a flexible, commonsense standard,” slip op. at 7 (citation omitted), Judge Sparks explains that the civilian judge who permitted the search “was presented with sufficient facts to reasonably infer evidence of Appellant’s crimes, namely fraud against the government and other offenses, would probably be recovered on a computer in Appellant’s home.” Slip op. at 9 (citation omitted). The entire court, including Judge Ryan and Senior Judge Effron, agrees with that analysis.

But the first issue fractures the court somewhat, with Judge Sparks and the majority applying the inevitable discovery doctrine (while doubting that the exclusionary rule should apply under the circumstances); Judge Ryan finding that even though the search authorization did not explicitly mention Eppes’ bags, the bags were fairly included in the authorization to search Eppes’ person; and Senior Judge Effron finding prejudicial error justifying reversal of the conditional pleas.

Read more »

CAAF decided the Army case of United States v. Robinson, 77 M.J. 294, No. 17-0231/AR (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). The court unanimously affirms the findings, sentence, and decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Senior Judge Effron who concurs in part and in the result.

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

In 2013 Specialist (E-4) Robinson – who was a Sergeant (E-5) at the time – attended a party at the residence of another specialist. Many were in attendance, including junior enlisted soldiers. Among those in attendance was Specialist (SPC) VM, who “was the only female at the party.” Slip op. at 3.

Much alcohol was consumed, and “SPC VM abruptly left the party after she became uncomfortable with another guest’s behavior and drove back to her barracks.” Slip op. at 3. Robinson later went to SPC VM’s barracks room, having “told his wife that he was leaving home to go check on a ‘drunk Soldier’ in the barracks.” Slip op. at 7. While SPC VM testified to little memory of the events in her barracks room, Robinson and VM both testified at trial that sexual intercourse occurred. Robinson, however, testified that the intercourse was consensual. But the military judge applied Mil. R. Evid. 412 to prohibit Robinson from testifying “that SPC VM had flirted with [him] for several months before [the party].” Slip op. at 4. The military judge “concluded that the evidence of SPC VM’s flirting on the night of the party was admissible, but not the evidence of flirting in the months leading up to the party.” Slip op. at 4.

A general court-martial composed of members with enlisted representation convicted Robinson of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The members sentenced Robinson to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement). The Army CCA affirmed in a summary disposition.

CAAF’s grant of the issue questioning whether the military judge’s Mil. R. Evid. 412 ruling was error got attention, including from the victims-rights advocacy group, Protect Our Defenders (POD) which filed an amicus brief asserting that an alleged victim’s privacy interests can override an accused’s right to present constitutionally-required evidence.

But today’s opinion doesn’t address that contentious issue, nor does it address the mens rea required for fraternization in violation of Army Regulation 600-20. Rather, finding the sexual assault conviction legally sufficient (an unsurprising result considering the high burden for reversal on this basis), a majority of CAAF concludes that any error in the military judge’s Mil. R. Evid. 412 ruling and the instructions on the fraternization offense was harmless because the evidence of guilt is overwhelming.

Only Senior Judge Effron would go further, but not much further. He finds that the “wide range of behavior from mild teasing to sexual innuendo” excluded under Mil. R. Evid. 412 “was, at best, marginally relevant to the charged offenses and relevant defenses.” Con. op. at 5-6. Accordingly, while Senior Judge Effron does not agree that the excluded evidence “was so inconsequential that the error was harmless beyond a reasonable doubt,” con. op. at 4, he nevertheless concludes that Robinson has not shown error in its exclusion.

Read more »

CAAF decided the Air Force case of United States v. Robinson, 77 M.J. 303, No.17-0504/AF (CAAFlog case page) (link to slip op.), on Monday, March 26, 2018. One of two cases by the same name (but with different appellants) decided today, in this case a majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, affirming the published decision of the Air Force CCA.

Judge Ohlson writes for the court joined by all but Chief Judge Stucky, who dissents.

Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.

Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.

At trial, Robinson’s defense counsel moved to suppress the text messages on the basis that Robinson’s consent to search and his disclosure of the passcode were both involuntary. The military judge denied the motion and the Air Force CCA affirmed in a published decision (76 M.J. 663) (analyzed here). The CCA also rejected a claim that the search of the device exceeded the scope of the consent, finding that the failure to raise the issue at trial waived it. CAAF then granted review of two issues:

I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.

II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.

In today’s opinion Judge Ohlson and the majority reject application of Mitchell by distinguishing the facts of this case from the facts of Mitchell. Judge Ohlson also explains that waiver applies to the scope issue raised for the first time on appeal based on the wording of the applicable Military Rule of Evidence and CAAF’s precedent interpreting that rule.

Chief Judge Stucky, however, dissents from the court’s resolution of the first issue. The Chief Judge – who authored the court’s opinion in Mitchell – finds this case indistinguishable from Mitchell, and he would not reach the second issue.

Read more »

CAAF decided the Air Force case of United States v. Wheeler, 77 M.J. 289, No.17-0456/AF (CAAFlog case page) (link to slip op.), on Thursday, March 22, 2018. Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense. Accordingly, CAAF affirms the findings, sentence, and published decision of the Air Force CCA.

Judge Ryan writes for a unanimous court.

Staff Sergeant (E-5) Wheeler was convicted contrary to his pleas of not guilty “of one specification of attempting to commit a lewd act upon a person he believed to be a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2012), and one specification of attempting to persuade, induce, or entice a person he believed to be a child to engage in sexual activity through the use of interstate commerce in violation of 18 U.S.C. § 2422(b) (2012), and charged under clause three of Article 134, UCMJ, 10 U.S.C. § 934 (2012).” Slip op. at 1. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

Wheeler moved to dismiss the Title 18 offense at trial, arguing that it was preempted by Article 120b. The preemption doctrine – the basis for Wheeler’s motion – is a limitation on the use of Article 134 that “prohibits application of Article 134 to conduct covered by Articles 80 to 132.” MCM pt. IV, para. 60.c.(5)(a). The military judge denied the motion, and the Air Force CCA affirmed in a published decision, reasoning in part that the Title 18 offense addresses “a harm that the UCMJ does not specifically address.” United States v. Wheeler, 76 M.J. 564, 572 (A.F. Ct. Crim. App. 2017).

CAAF then granted review to determine:

Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

Yesterday’s decision affirms the Air Force CCA’s reasoning with a narrow interpretation of the preemption doctrine.

Read more »

CAAF decided the Air Force case of United States v. Carpenter, 77 M.J. 285, No. 0476/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 20, 2018. Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal. Accordingly, CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy (identified by the initials J.M.). Carpenter’s defense was that he mistakenly believed the boy was at least 16. In an effort to prove this mistaken belief, Carpenter’s defense counsel filed a motion in limine seeking to present evidence of J.M.’s sexual encounters with other adult men. The military judge denied the motion, however, holding “that the evidence was inadmissible because it was not relevant to Appellant’s mistake of fact as to J.M.’s age.” Slip op. at 3.

The Air Force CCA affirmed and CAAF granted review to determine:

Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.

Emphasizing that “when reviewing a military judge’s ruling for an abuse of discretion, [CAAF] pierce[s] the CCA’s opinion and examine[s] the military judge’s ruling directly,” slip op. at 3 n.5, Judge Ohlson explains that “in the context of the argument made by trial defense counsel in the motion in limine, we conclude that the military judge’s decision to exclude evidence pursuant to M.R.E. 412 was not clearly erroneous,” slip op. at 6 (emphasis added).

Read more »

CAAF decided the certified Army case of United States v. Simpson, 77 M.J. 279, No. 17-0329/AR (CAAFlog case page) (link to slip op.), on Monday, March 19, 2018. Answering the certified issue in the negative, CAAF reemphasizes that the victim of a larceny under Article 121 is the person or entity from whom the accused obtained the goods or money at issue, and not merely any person who suffered a loss or consequence as a result of the accused’s actions. Nevertheless, CAAF reverses the Army CCA’s decision, finding that the appellant’s guilty plea to conspiracy to commit larceny may stand and that a conviction of attempted larceny (as a lesser included offense of larceny) may also be affirmed.

Judge Ryan writes for a unanimous court.

Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills. Simpson also conspired with another Soldier to use the CFNA account to pay the other Soldier’s bills. Simpson’s frauds amounted to over $30,000, and he ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.

On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim. A three-judge panel of the Army CCA agreed (in a 2-1 decision) and reversed both pleas. The Judge Advocate General of the Army then certified a single issue to CAAF:

Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

In today’s opinion Judge Ryan explains that the answer to the certified question is no, but the Army CCA’s decision to reverse both convictions was mostly wrong for other reasons.

Read more »

CAAF decided the Air Force case of United States v. Mooney, 77 M.J. 252, No. 17-0405/AF (CAAFlog case page) (link to slip op.), on March 12, 2018. The court concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.

Judge Sparks writes for a unanimous court.

Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.

Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.

The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court. The Air Force CCA affirmed in a published decision, and CAAF granted review to determine:

Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.

In yesterday’s decision CAAF rejects the argument that Mooney’s guilty plea waived this issue and it interprets Article 57a (10 U.S.C. § 857a) to hold that while “Congress expressly provided for deferment when a member is in custody of a state or foreign country, they intended to exclude when [as in this case] a member is in custody of the federal government.” Slip op. at 9.

Read more »

CAAF decided the certified Air Force case of United States v. Katso, 77 M.J. 247, No.17-0326/AF (CAAFlog case page) (link to slip op.) on Monday, March 12, 2018. Concluding that the Air Force CCA was wrong to apply the pretrial confinement review procedures of Rule for Courts-Martial 305 to Katso’s continued post-trial confinement while appellate review was underway, CAAF reverses the CCA’s award of 365 days of confinement credit.

Judge Ryan writes for a unanimous court.

Almost three years ago, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF reversed the Air Force CCA’s opinion that held that expert testimony violated Airman Basic (E-1) Katso’s constitutional right to confrontation. CAAF;s 2015 decision was the product of the Judge Advocate General of the Air Force certifying the case under Article 67(a)(2), and its decision reinstated Katso’s convictions of aggravated sexual assault, burglary, and unlawful entry, and the sentence of confinement for ten years, total forfeitures, and a dishonorable discharge.

Katso remained in confinement during that review. A year after the certification, however, Katso requested review of his confinement. A hearing was conducted and Katso was retained in confinement pending CAAF’s decision. Then, when CAAF returned the case to the Air Force CCA, the CCA found that Katso was entitled to credit for that year during which he was held without a hearing (despite having not requested a hearing), because that’s the remedy provided by R.C.M. 305(k) for the failure to conduct such a hearing for pretrial confinement.

The Judge Advocate General then certified the case again, with three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

CAAF answers all three questions favorably for the Government, with Judge Ryan explaining that “the overarching problem with the AFCCA’s approach to this case is that, without any case law, or any rule-based or statutory authority, it imposed the entirety of R.C.M. 305 procedures and penalties, crafted for pretrial confinement, on the Government in a completely different context.” Slip op. at 5 (emphasis in original).

Read more »

CAAF decided the Air Force case of United States v. Condon, __ M.J. __, No.17-0392/AF (CAAFlog case page) (link to slip op.), on March 1, 2018. In a short, fact-specific opinion the court unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members. It is similarly – and almost summarily – resolved here, with Chief Judge Stucky writing “that the military judge did not abuse his discretion in failing to give the proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members.” Slip op. at 3.

The specified issue, however, addresses the fact that Condon was interrogated by the Air Force Office of Special Investigations (AFOSI), during which he invoked his right to counsel. The investigators then told Condon that they had a warrant to search his home and asked for a key. Condon then decided to resume the interrogation. The entire process was recorded on video.

Over defense objection, the entire video (including the rights invocation) was played for the members, because the military judge “conclud[ed] it would be less confusing for the members if he gave the limiting instruction on the invocation than to redact the invocation and instruct the members on the resulting gap in the recording.” Slip op. at 3.

CAAF doesn’t find this was error. Instead, it concludes that:

we need not determine whether the admission of [Condon’s] invocation was error because we conclude he suffered no prejudice as a result—that is, even if the members were aware of the invocation later, the inclusion of it was unimportant in relation to everything else the panel considered in the case.

Slip op. at 4 (marks and citation omitted).

Read more »

CAAF decided the Air Force case of United States v. Blanks, 77 M.J. 239, No.17-0404/AF (CAAFlog case page) (link to slip op.), on Wednesday, February 28, 2018. Finding no persuasive reason to overrule 65 years of precedent holding that negligent dereliction of duty is an offense under the UCMJ, CAAF affirms the appellant’s conviction of negligent dereliction and the decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

Senior Airman (E-4) Blanks was charged with willful dereliction of duty but convicted of the lesser included offense of negligent dereliction of duty. The factual basis for the conviction was that Blanks failed to provide adequate financial support to his wife. Blanks challenged the conviction on appeal, asserting that recent mens rea jurisprudence (the #8 Military Justice Story of 2017), including CAAF’s functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), establishes recklessness as the lowest mens rea which separates wrongful conduct from otherwise innocent conduct, and therefore his conviction for negligent dereliction must be reversed.

Intrigued by the challenge, CAAF granted review to determine whether:

In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Today the court unanimously rejected the challenge. Acknowledging a “long line of precedent,” Judge Ohlson explains that “the military judge did not err, plainly or otherwise, by instructing the members on the negligent dereliction of duty offense.” Slip op. at 3. The reason is stare decisis.

Read more »

CAAF decided the Coast Guard case of United States v. Harpole, 77 M.J. 231, No.17-0171/CG (CAAFlog case page) (link to slip op.), on Wednesday, February 14, 2018. The court unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.

Judge Ohlson writes for the court, joined by all but Chief Judge Stucky who dissents because he concludes that any motion to suppress would have failed.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page). Slip op. at 2.

After a night of drinking during a port call in Tahiti, Seaman (E-3) Harpole went into a four-person female stateroom aboard the USCGC Polar Star, ostensibly to retrieve his backpack from the alleged victim, Storekeeper Third Class (SK3) GR. While he was in the room, he and GR had sex. GR was later confronted by her roommates about the encounter but stated she could not remember what happened (because she too had been drinking during the port call). She then reported the incident as a sexual assault.

“Three days after the incident, Appellant informed his friend, Seaman Boatswain’s Mate (SNBM) SC, and a victim advocate, Yeoman First Class (YN1) Nipp, that SK3 GR had sexually assaulted him.” Slip op. at 4 (emphasis in original). YN1 Nipp then reported Harpole’s statements to the command and gave “a detailed written statement about [Harpole]’s communication to her.” Slip op. at 4.

Harpole’s defense moved to prevent YN1 Nipp from testifying, asserting the Mil. R. Evid. 514 victim advocate-victim privilege. The military judge found that the privilege does not apply and denied the motion. Harpole was then convicted by a general court-martial composed of members with enlisted representation of making a false official statement, two specifications of sexual assault, and housebreaking, and he was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. The Coast Guard CCA affirmed the findings and sentence, agreeing that the victim advocate-victim privilege does not apply and rejecting a claim of ineffective assistance of counsel on the basis that “the theory that [YN1 Nipp] was acting as a Victim Advocate is factually inconsistent with the theory that [YN1 Nipp] was required to give Appellant his Article 31(b) rights.” United States v. Harpole, No. 1420, slip op. at 8 (C.G. Ct. Crim. App. Nov. 10, 2016).

Judge Ohlson’s opinion of the court affirms the military judge and Coast Guard CCA’s conclusions about the privilege, but it scolds the CCA for asserting an inconsistency, noting that “there is nothing improper or unusual about counsel presenting arguments in the alternative before a trial judge.” Slip op. at 10 n.11.

Read more »