CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. Wilson, __ M.J. __, No. 16-0267/AR (CAAFlog case page) (link to slip op.), on Friday, January 13, 2017. Considering an issue raised personally by the appellant, CAAF concludes that a fenced motor pool is not a structure for the purposes of housebreaking in violation of Article 130, 10 U.S.C. § 930. Accordingly, the appellant’s housebreaking conviction is factually insufficient and CAAF reverses the conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Specialist (E-4) Wilson and an accomplice entered the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. They were caught. Wilson pleaded guilty to larceny in violation of Article 121 (for prior thefts) but he contested a charge of housebreaking of the motor pool in violation of Article 130.

The offense of housebreaking requires unlawful entry into a building or structure. The motor pool at issue, however, “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of military property, including vehicles.” Slip op. at 3. The motor pool contains sotrage buildings, but Wilson did not enter any building “nor did he cut any locks, open any doors, or climb through the windows of any building.” Slip op. at 3.

At trial Wilson moved for a finding of not guilty arguing that the motor pool did not qualify as a structure under Article 130. The military judge denied the motion. Wilson renewed his argument on appeal but it was rejected by the Army CCA. CAAF then granted review of a single issue:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

CAAF finds that the military judge did err.

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Disclosure: In my personal capacity I represent an appellant whose case is before CAAF with issues similar to those raised in this case.

In a per curiam opinion issued today in United States v. Dalmazzi, __ M.J. __, No. 16-0651/AF (CAAFlog case page) (link to slip op.), CAAF finds that the appellant’s challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals that decided her case is moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

CAAF’s reasoning for why the date of the appointment is controlling is that:

three separate actions are required for the President to appoint an “additional judge” to the USCMCR under the terms of 10 U.S.C. § 950f: (1) the President nominates a person for the position and sends his name to the Senate for confirmation; (2) the Senate confirms the nominee; and (3) the President appoints the confirmed nominee to the position.

Normally, the President signs a commission as evidence of the appointment. But

if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156 (1803). While not necessary for the appointment, the commission is “conclusive evidence of it.” Id. at 157. Before the issuance of the commission, the President is free to change his mind and not make the appointment; afterwards, he is not. See Dysart v. United States, 369 F.3d 1303, 1311 (Fed. Cir. 2004).

Appellant argues that actions Colonel Mitchell took as a judge on the USCMCR before the President issued the commission were public acts that evidenced his appointment. We disagree. It is the President who must perform some public act that evinces the appointment, not the purported appointee. See, e.g., Dysart, 369 F.3d at 1306, 1312. Other than the commission, issued on May 25, 2016, there is no evidence that the President appointed Colonel Mitchell to the USCMCR. Therefore, that is the date of his presidential appointment as judge to the USCMCR.

Slip op. at 4.

The underlying issue remains before CAAF in dozens of cases presenting the same challenge involving judges on the Army, Air Force, and Navy-Marine Corps courts.

Case Links:
AFCCA opinion
Blog post: CAAF to review whether an appellate military judge can sit on both a CCA and the CMCR
Blog post: CAAF grants oral argument to the Military Commissions Defense Organization as amicus in support of neither party in Dalmazzi
Appellant’s brief on granted issues
Appellee’s (Government) brief on granted issues
Appellant’s reply brief on granted issues
Amicus brief of the Military Commissions Defense Organization
Amicus brief of the Army Appellate Government Division
Amicus Brief of the Navy-Marine Corps Appellate Government Division
Blog post: Potential mootness in Dalmazzi
Appellant’s brief on specified issue
Appellee’s (Government) brief on specified issue
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Marine Corps case of United States v. Sterling, 75 M.J. 407, Nos. 15-0510/MC & 16-0223/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 10, 2016. The court holds that Sterling’s disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority finds that Sterling failed to establish that the order she violated substantially burdened her exercise of religion. Accordingly, CAAF affirms the findings and sentence.

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

Contrary to her pleas of not guilty, Lance Corporal (E-3) Sterling was convicted by a special court-martial, composed of members with enlisted representation, of failure to go to her appointed place of duty, disrespect towards a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer, in violation of Article 86, 89, and 91. She was sentenced to reduction to E-1 and a bad-conduct discharge.

Sterling’s court-martial arose out of her contentious relationship with her superiors. She elected to represent herself at trial (though she had the assistance of detailed military defense counsel). She was convicted of offenses for her refusal to wear the service C uniform, her refusal to perform duty handing out vehicle passes, and her refusal to obey an order to remove three signs that she posted in her office workspace. The signs stated “no weapon formed against me shall prosper” and Sterling asserted at trial and on appeal that the signs represented the Christian trinity and were posted as an expression of her religious belief.

The Navy-Marine Corps CCA affirmed the findings and sentence after concluding that Sterling’s conduct was not entitled to protection under RFRA. CAAF then granted review of two issues specified by the court, and the Judge Advocate General of the Navy certified two additional issues:

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?

II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

In yesterday’s decision CAAF concludes: that the order was lawful (answering the second granted issue in the affirmative); that Sterling’s failure to follow the procedures to seek an accommodation is relevant (answering the first certified issue in the affirmative); that Sterling did not waive or forfeit her claim under RFRA (answering the second certified issue in the negative), and; that Sterling failed to establish the facts necessary to prevail on a RFRA claim (answering the first granted issue in the negative).

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CAAF decided the certified Marine Corps case of Howell v. United States, 75 M.J. 386, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

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CAAF decided the capital Air Force case of United States v. Witt, 75 M.J. 380, No. 15-0260/AF (CAAFlog case page) (link to slip op.), on Tuesday, July 19, 2016. In a short opinion the court sets aside the second decision of the Air Force CCA (that affirmed the sentence of death) and reinstates the first decision (that reversed the sentence of death), authorizing a sentence rehearing.

Judge Stucky writes for a unanimous court.

In 2005 a general court-martial composed of twelve officer members convicted Senior Airman Witt of the premeditated murder of a fellow Airman and his wife, and also of the attempted murder of another Airman, and sentenced Witt to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial. But the court split 3-2 on the question of prejudice, narrowly finding that had Witt’s counsel not been deficient then the members might not have adjudged the death sentence. The CCA remanded for a sentence rehearing.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014 (discussed here). As it had in the first decision, the CCA again found that Witt’s trial defense counsel were deficient. But on the crucial question of prejudice the court split 4-2 to find that Witt was not prejudiced by his counsel’s errors, and accordingly it approved the adjudged sentence of death. This reversal of fortune was our #7 Military Justice Story of 2014.

Because Witt had an approved sentence of death, CAAF’s review was mandatory (see Article 67(a)(1)), and the court specified two issues that questioned whether the AFCCA could reinstate the capital sentence in the way that it did:

I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?

II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

In today’s decision CAAF holds that a CCA does have the authority to reconsider en banc a prior en banc decision, however it finds that three of the AFCCA judges who participated in the reconsideration were disqualified from doing so.

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CAAF decided the Air Force case of United States v. Harrell, 75 M.J. 359, No. 16-007/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 28, 2016. The court finds no Fourth Amendment violation in the use of a canine leading to the discovery of marijuana and glass smoking pipes in the appellant’s vehicle, affirming the decision of the Air Force CCA and the appellant’s conditional pleas of guilty.

Chief Judge Erdmann writes for a unanimous court. Senior Judge Cox writes separately, concurring.

CAAF specified a single issue for review:

Whether evidence obtained from a police search of appellant’s vehicle on or about August 4, 2010, was obtained in violation of the Fourth Amendment and should have been suppressed.

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CAAF decided the Army case of United States v. Hills, 75 M.J. 350, No. 15-0767/AR (CAAFlog case page) (link to slip op.), on Monday, June 27, 2016.

In a hugely-significant decision, CAAF holds that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence is constitutionally erroneous because it undermines the presumption of innocence. CAAF concludes that the error in this case was not harmless beyond a reasonable doubt because of the overall weakness of the Government’s case, and it reverses the decision of the Army CCA and the appellant’s conviction of abusive sexual contact, authorizing a rehearing.

Judge Ryan writes for a unanimous court.

Sergeant Hills was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas of not guilty, of one specification of abusive sexual contact in violation of Article 120. The conviction arose from an alleged sexual encounter with a heavily intoxicated female soldier. Hills was acquitted to two additional specifications of abusive sexual contact arising out of the same encounter with the same alleged victim. The members sentenced him to confinement for six months, reduction to E-1, and a bad-conduct discharge.

At trial, and over the objection of the defense, the military judge allowed the prosecution to use the three charged violations of Article 120 as evidence to prove Hills’ propensity to commit those same offenses. While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998).

For years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged offenses. But our #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413, as three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses, just as was done in Hills.

The Army CCA considered this use of the charged offenses and affirmed the conviction. CAAF then granted review of one issue:

Whether the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

In today’s decision a unanimous CAAF holds not only that the military judge did abuse his discretion but also that the instructions he gave to the members undermined Hills’ presumption of innocence, creating constitutional error (that must be found to be harmless beyond a reasonable doubt to sustain the conviction).

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CAAF decided the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (CAAFlog case page) (link to slip op.), on Monday, June 21, 2016. In a short opinion the court finds no jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. As a result, CAAF dismisses the petition.

Judge Stucky writes for a unanimous court.

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CAAF decided the Marine Corps of United States v. Martin, 75 M.J. 321, No. 15-0754/MC (CAAFlog case page) (link to slip op.), on Friday, June 17, 2016. With a majority of the court finding that defense counsel invited the erroneous admission of human lie detector testimony, CAAF affirms the appellant’s conviction of wrongful sexual contact and the decision of the Navy-Marine Corps CCA. However, two judges dissent with a strongly-worded opinion.

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

Sergeant Martin was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The conviction was based on Martin’s alleged sexual touching of a sleeping female subordinate (identified by the initials CRI) who was also the wife of another Marine. At trial Martin’s defense focused on attacking the credibility of the alleged victim – the chief prosecution witness – asserting that her allegation was fabricated. But the prosecution also called the alleged victim’s husband to testify, as he was sleeping next to his wife at the time of the alleged assault, and the husband testified on direct examination about how his wife’s demeanor changed after the night in question. Then, both the prosecution and the defense asked the husband to opine about the truth of his wife’s allegation against Martin, and both sides argued the husband’s opinion about the truthfulness of his wife’s allegation in closing argument.

The Navy-Marine Corps CCA found that the husband’s opinion constituted improper human lie detector testimony, which is “an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). However, the CCA found that the admission of that improper testimony was harmless and affirmed the conviction. CAAF then granted review of a specified issue questioning the CCA’s harmlessness determination:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

The Judge Advocate General of the Navy then certified a second issue challenging the underlying finding of error on the basis that it was invited by the defense:

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

Writing for the majority, Judge Ohlson finds that the error was invited by the defense in cross-examination after the prosecution called the husband for a proper purpose, answering the certified issue in the affirmative and avoiding the granted issue. Writing for the dissenters, however, Judge Stucky asserts that “the scales of justice were tipped by grossly improper testimony from the victim’s husband explaining why he believed that his wife was ‘telling the truth.'” Diss. op. at 1.

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CAAF decided the Army case of United States v. Evans, 75 M.J. 302, No. 16-0019/AR (CAAFlog case page) (link to slip op.), on Monday, June 6, 2016. Resolving an inconsistency in its own precedent regarding the appropriate test for whether a violation of the Article 31(b) statutory right to remain silent is harmless in a particular case, CAAF explains that when only the statutory provision (and not also the Fifth Amendment right against self-incrimination) is violated then the violation is tested using the four-part test set forth in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999). Finding that only Article 31(b) was violated in this case, CAAF affirms the decision of the Army CCA.

Judge Ohlson writes for a unanimous court. Notably, this is the first opinion of the court to include the recently-confirmed Judge Sparks.

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CAAF decided the certified Navy case of United States v. Clark, 75 M.J. 298, 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, 75 M.J. 276, 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, 75 M.J. 270, 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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