CAAFlog » CAAF Opinions

CAAF decided the Air Force case of United States v. McFadden, __ M.J. __, No. 12-0501/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 3, 2015. A sharply divided court finds that the military judge did not err in denying Appellant’s motion for a mistrial or in failing to sua sponte excuse a member for cause after the member equated Appellant’s invocation of her 31(b) right to remain silent to lying by omission. CAAF affirms Appellant’s convictions and the decision of the Air Force CCA.

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

CAAF granted review of two issues in this case:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. She pleaded guilty to one specification of unauthorized absence in violation of Article 86, and not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). The Air Force CCA affirmed in three separate opinions.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant testified in her own defense during the findings phase of her trial, asserting that she never formed the intent to remain away permanently. Yet during her testimony, Appellant acknowledged that during pretrial interrogations she invoked her right to remain silent when asked about her intent. Then the members were permitted to question Appellant (without first submitting their questions in writing to the military judge, as required by M.R.E. 614(b)). One member – named Major Cereste – questioned Appellant’s invocation of her right to remain silent, likening it to lying by omission:

Major Cereste, a court member, and Appellant then engaged in the following exchange:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.

Slip op. at 4-5 (quoting record) (emphasis added). Appellant’s counsel subsequently moved for a mistrial, but did not seek to voir dire or disqualify the member. The motion for a mistrial was denied, but the military judge instructed the panel (using language provided by the defense) that Appellant’s invocation of her right to remain silent was not lying by omission.

Judge Stucky’s majority opinion doesn’t explicitly state that the failure of the defense to challenge the member or make a more aggressive objection is the reason for the court’s decision in this case, but it comes pretty close. His opinion also highlights the discretionary nature of a military’s judge’s ability to do more than requested.

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CAAF decided the Army case of United States v. Newton, __ M.J. __, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.

Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.

Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:

  • In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
  • In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
  • In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.

Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.

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CAAF decided the Air Force case of United States v. Gutierrez, __ M.J. __, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

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CAAF decided the Army cases of United States v. Peters, 74 M.J. 31, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, __ M.J. __, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.

Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.

CAAF has made it clear that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). But those separate tests receive different degrees of deference on review:

A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.

United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.

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In this post from last October, I analyzed the NMCCA’s en banc decision in United States v. Spurling, No. 201400124 (N-M. Ct. Crim. App. Oct. 16, 2014). The case involves allegations of ineffective assistance by the appellant’s trial defense counsel, and the CCA’s decision explained that the two trial defense counsel functionally admitted their deficiency in affidavits to the CCA. But in a split decision, the CCA found no prejudice to the appellant.

The asserted deficiency was in the failure to seek suppression of a statement made by the appellant. The majority applied the objective standard articulated by CAAF last year in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page), and concluded that a motion to suppress would not have prevailed at trial.

But CAAF summarily reversed the CCA on Friday, February 6, 2015, finding that the CCA’s decision improperly applied the Jones standard and also that it applied the wrong standard to determine whether a motion to suppress would have succeeded:

No. 15-0228/MC. U.S. v. Myles R. Spurling. CCA 201400124. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that the Court of Criminal Appeals applied erroneous standards of review in evaluating Appellant’s ineffective assistance of counsel claim. First, in its review of the facts and circumstances to determine whether a motion to suppress would have been meritorious, the Court of Criminal Appeals relied on the subjective beliefs and opinions of the questioner and third-parties in assessing whether Appellant faced questioning from an individual in an official capacity or for disciplinary purposes. As we made clear in United States v. Jones, 73 M.J. 357, 362 (C.A.A.F. 2014), the analysis is informed by an objective standard. Additionally, when the Court of Criminal Appeals reviewed whether the motion to suppress would have been “meritorious,” it correctly cited the “reasonable probability” of success standard but then equated that standard with a standard of preponderance of the evidence. United States v. Spurling, No. NMCCA 201400124, slip op. at 7 n.18 (N-M. Ct. Crim. App. Oct. 16, 2014). Whether a motion is meritorious falls under the “reasonable probability” standard of Strickland v. Washington, 466 U.S. 668 (1994), and “[a] reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. See United States v. Jameson, 65 M.J. 160, 161-62 (C.A.A.F. 2007). Therefore, the Court of Criminal Appeals applied the wrong standard in assessing the meritorious aspect of the ineffective assistance claim.

Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (1) APPLIED AN ERRONEOUS STANDARD OF REVIEW IN EVALUATING WHETHER A MOTION TO SUPPRESS WOULD HAVE BEEN MERITORIOUS IN ASSESSING APPELLANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AND (2) ERRED IN DETERMINING THAT ANY SUCH MOTION WOULD FAIL BECAUSE APPELLANT WAS NOT ENTITLED TO WARNINGS PURSUANT TO ARTICLE 31(b).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), utilizing the standards of review set forth in Jones and Strickland. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

CAAF decided the Army case of United States v. Piren, 74 M.J. 24, No. 14-0453/AR (CAAFlog case page) (link to slip op.), on Thursday, January 15, 2015. The court finds that the military judge did not abuse her discretion when she overruled the Defense objection to the scope of the Government’s cross-examination of Appellant, or when she denied the Defense motion to suppress the results of a DNA analysis, affirming the decision of the Army CCA and Appellant’s conviction.

Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.

II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.

After the sexual assault allegation was made against Appellant, Appellant made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh who did not advise him of his right to remain silent. Appellant also consented to a forensic sexual assault examination that included taking samples for DNA analysis. The Government did not oppose a defense motion to suppress the un-warned statements to LTC Alumbaugh, but it did oppose a defense motion to suppress the results of the DNA analysis. The military judge suppressed the statements but admitted the DNA results. However, despite the suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).

Appellant then testified in his own defense, deliberately avoiding any testimony about his statements to LTC Alumbaugh. But on cross-examination the prosecution questioned Appellant about the statements he made to LTC Alumbaugh. The prosecution then recalled LTC Alumbaugh to impeach Appellant’s testimony about those same statements. Specifically, she denied that Appellant told her four thing about the sexual encounter at issue that Appellant testified (on cross-examination) that he did tell her.

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In an order dated today, CAAF summarily reverses the Army CCA’s decision in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), that affirmed the appellant’s pleas of guilty to larceny from a fellow soldier based upon the appellant’s unauthorized use of that other soldier’s debit card.

I wrote about Endsley in this post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In that post I concluded that the appellant’s offense was a larceny by false pretenses from the merchants where he used the debit card and not a larceny from the other soldier, that the guilty plea was improvident, and that the CCA’s decision should be reversed.

CAAF agrees:

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victims in the Specification of the Charge were the merchants who provided the goods upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and the providence inquiry focused on the Soldier as the victim, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is, by the Court, this 14th day of January, 2015, ORDERED:

That said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO LARCENY OF THE PROPERTY OF SPECIALIST DT WHEN THE ALLEGED LARCENIES INVOLVED THE UNAUTHORIZED USE OF SPECIALIST DT’S DEBIT CARD NUMBER TO OBTAIN THE RETAIL GOODS OF A MERCHANT BY FALSE PRETENSE.

The decision of the United States Army Court of Criminal Appeals is reversed as to the Charge and its Specification and the sentence. The findings of guilty as to the Charge and its Specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss the Charge and its specification and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and specification and the sentence.

74 M.J. __ (C.A.A.F. Jan. 14, 2015) (emphasis added).

Notably, I had a similar disagreement with the Army CCA’s unpublished decision in United States v. Conway, No. 20120708 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). I’ll be watching to see what CAAF does in that case.

CAAF decided the Army case of United States v. Phillips, 74 M.J. 20, No. 14-0199/AR (CAAFlog case page) (link to slip op.), on Tuesday, January 6, 2015. The court rejects application of the ultimate offense doctrine to Appellant’s plea of guilty to disobeying the order of a superior commissioned officer, in violation of Article 90, and reverses a half-century old precedent that premised Article 90 liability on a commissioned officer giving such an order “with the full authority of his office, [thereby lifting] it above the common ruck.” Slip op. at  8 (quoting United States v. Loos, 16 C.M.R. 52, 54 (1954)).

Judge Stucky write for a unanimous court.

Appellant was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine. That doctrine is a part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also rarely employed. But the doctrine made something of a comeback at the Army court where, as I noted over a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, the court applied the doctrine to reverse a number of guilty pleas for violations of Articles 90, 91, and 92.

However, the Government sought en banc reconsideration in Phillips and the full CCA reversed the panel in a published opinion. CAAF then granted review of a single issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Judge Stucky’s opinion doesn’t eliminate the ultimate offense doctrine from military law, but it strictly curbs application of the doctrine in the future.

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CAAF decided the Marine Corps case of United States v. Gilbreath, 74 M.J. 11, No. 14-0322/MC (CAAFlog case page) (link to slip op.), on Thursday, December 18, 2014. The court finds that the protections of Article 31(b) apply to members of the Individual Ready Reserve and that a rights warning was required under the facts of this case, reversing the decision of the Navy-Marine Corps CCA and the appellant’s conviction of larceny of a pistol.

Chief Judge Baker writes for a unanimous court.

CAAF reviewed two issues in this case (the first granted, the second specified by the court):

I. Whether Individual Ready Reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.

II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Appellant, a Corporal (E-4), was an inactive reservist who had completed his active duty service obligation in January 2011. However, prior to his discharge, Appellant stole a pistol from his unit’s armory where he served as a custodian. Sergeant (E-5) Muratori, who was Appellant’s former supervisor, friend, and roomate, was tasked with locating the missing pistol. The Sergeant contacted Appellant and asked about the pistol, and became suspicious that Appellant had the pistol when he heard Appellant’s answer. The Sergeant then directly asked Appellant if he had the pistol, and Appellant admitted that he did.

At no point did the Sergeant advise Appellant of his Article 31(b) right to remain silent.

Appellant was recalled to active duty for prosecution and charged with larceny of the pistol. His defense counsel moved to suppress his statements due to the lack of a rights warning. But the military judge denied the motion, finding that “Appellant was not subject to the UCMJ and thus not entitled to the added protections of Article 31(b),” and further that “Sgt Muratori was not acting in a law enforcement or disciplinary function, and therefore was not required to warn against self-incrimination.” Slip op. at 9-10 (marks omitted). Appellant was then convicted of the larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, and he was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge.

On appeal, a three judge panel of the Navy-Marine Corps CCA unanimously affirmed. United States v. Gilbreath, No. 201200427 (N-M.Ct.Crim.App. Nov. 12, 2013) (link to unpub. op.). The court disagreed somewhat on the legal analysis, with one judge applying the Duga test (that was later abrogated by CAAF in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2104) (CAAFlog case page)) to find that a rights warning was not required because Appellant did not subjectively perceive the Sergeant’s questioning as involving more than a casual conversation. But the other two judges concluded that the legislative history of Article 31(b) and case law “clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b).” Gilbreath, No. 201200427, slip op. at 6. CAAF then granted review in June (about three weeks before publishing its decision in Jones).

In my argument preview in this case, I predicted that CAAF’s decision would be a significant precedent. Chief Judge Baker’s opinion for the unanimous court doesn’t disappoint.

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CAAF decided the interlocutory Marine Corps case of United States v. Vargas, __ M.J. __, No. 14-6009/MC (CAAFlog case page) (link to slip op.), on Monday, December 8, 2014. The court holds that the Article 62 does not confer jurisdiction for the Government’s appeal of the military judge’s ruling that denied a Government request for a continuance, reversing the decision of the Navy-Marine Corps CCA and remanding the case for further trial proceedings.

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

Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon on the first day the Government counsel was unprepared to present any more evidence until the second day. So, Government counsel requested a continuance until the following morning.

But the Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917 (the Defense rested without presenting any evidence). The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.

That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.

A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:

By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.

United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here). CAAF then granted review to determine whether the CCA had jurisdiction to reach this conclusion, with the following issue:

Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

In today’s opinion the court answers this question with a clear “No.”

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CAAF decided the Army case of United States v. MacDonald, No. 14-0001/AR, 73 M.J. 426 (CAAFlog case page) (link to slip op.) on Wednesday, August 27, 2014. The court unanimously finds that the military judge’s failure to give an involuntary intoxication instruction regarding Appellant’s use of the smoking-cessation drug Chantix was error that was not harmless, reversing the decision of the Army CCA that affirmed Appellant’s conviction for the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept for which, along with, other offenses, Appellant was sentenced to life without the possibility of parole.

Chief Judge Baker writes for the court.

At trial Appellant asserted the defense of lack of mental responsibility, in part because of his use of the drug varenicline (known by the brand name Chantix) to help him quit smoking. Use of Chantix has been associated with homicidal ideations, and part of Appellant’s defense strategy was to claim involuntary intoxication by Chantix as a basis for a lack of mental responsibility. But the military judge quashed a subpoena for records related to Chantix from its manufacturer (Pfizer, Inc.) and also refused to give the members a Defense-requested instruction during the findings phase regarding the defense of involuntary intoxication (though the judge did instruct on the defense of lack of mental responsibility).

The Army CCA affirmed the findings and sentence after determining that quashing the subpoena and failing to give the instruction were errors, but that they were harmless in light of the evidence of Appellant’s ability to appreciate the wrongfulness of his conduct. CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.

II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

The second issue is dispositive to the case and the court does not reach the first issue.

The Chief Judge’s analysis begins by noting that even though involuntary intoxication is not one of the defenses listed in R.C.M. 916, that rule “provides an illustrative rather than an exhaustive list of defenses.” Slip op. at 23-24.  “In [United States v. Hensler, 44 M.J. 184, 187-88 (C.A.A.F. 1996)], this Court recognized involuntary intoxication as an affirmative defense and the Government has not challenged that legal conclusion at trial or on appeal. Rather, the Government challenge has been to the scope of the defense and its factual applicability in this case.” Slip op. at 24.

The Government’s view of involuntary intoxication (discussed the final paragraphs of my argument preview) what that it was “subsumed within the defense of mental responsibility” for which the members were properly instructed. Slip op. at 28. This position is based on the language of Hensler that “involuntary intoxication is treated like legal insanity. It is defined in terms of lack of mental responsibility.” Hensler, 44 M.J. at 188. But Chief Judge Baker’s opinion explains that there is substantial difference between lack of mental responsibility and involuntary intoxication.

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CAAF decided the Air Force case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014. Wilson is a companion case to United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), and echoes the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. But CAAF finds that Article 12 was not violated in this case because Technical Sergeant Wilson was confined alone. The court answers the certified issue in the negative and affirms the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by all but Chief Judge Baker who dissents with a single sentence that refers to his separate opinion in McPherson.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of violating a lawful order in violation of Article 92 (he was acquitted of numerous other charges). He was sentenced to reduction to E-2, confinement for three months, and a bad-conduct discharge. He served the entire sentence to confinement in a local civilian jail because there was no nearby military confinement facility. Pursuant to a standing policy, the jail segregated Appellee from the other prisoners in order to avoid housing him with foreign nationals. Appellee complained about this segregation in his post-trial submission to the convening authority, and then again to the Air Force CCA where he alleged that being held in isolation at the civilian jail constituted cruel and unusual punishment in violation of Article 55. The CCA rejected Appellee’s claim, finding that TSgt Wilson failed to show that jail officials were deliberately indifferent to his health and safety, and noting: “To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ.” United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012).

CAAF then summarily remanded the case for the CCA to consider whether Article 12 applies, which the court did in a published opinion issued in January, concluding that there is no geographical limitation to Article 12. United States v. Wilson, 73 M.J. 529 A.F. Ct. Crim. App. 2014). The Judge Advocate General of the Air Force then certified the case to CAAF with the exact same issue as the one certified in McPherson:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

But because Appellee never raised an Article 12 claim – he actually specifically rejected it during oral argument at the CCA – he asserted that CAAF lacked jurisdiction to consider the certified issue. Judge Stucky’s majority opinion rejects the assertion, finding that CAAF can consider the certified issue because “there is a justiciable case and controversy . . . [t]he CCA has rendered a “final action” in Appellee’s case . . . the applicability of Article 12 to TSgt Wilson is interwoven with the resolution of his complaints about confinement conditions.” Slip op. at 5. Appellee’s efforts to obtain further review of the actual circumstances of his segregated confinement is also rejected in a short footnote. Slip op. at 2 n.1.

Judge Stucky’s majority opinion is short – just barely over five pages – making it the shortest opinion of the court this term, and it avoids considering whether the segregation of Appellee in order to avoid a violation of Article 12 resulted in a violation of some other legal right. At the CCA, Appellee complained about his segregated confinement as cruel and unusual punishment, in violation of Article 55. The CCA’s analysis of that claim – now dispositive in this case – is somewhat unsatisfying:

The appellant’s claim fails because he has not established that jail officials were deliberately indifferent to his health and safety. To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ. Such routine conditions of administrative segregation do not constitute cruel and unusual punishment under an Eighth Amendment analysis absent deprivation of life’s necessities or infliction of unnecessary pain. Avila, 53 M.J. at 101-02. Although the appellant questions the management decisions of the local jail, his questions are insufficient to show the required culpable state of mind.

United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012). There is a wide range of possible deprivations that a service member might suffer between segregation to prevent commingling and deliberate indifference to health and safety.

In the conclusion of my analysis of McPherson I doubted that CAAF’s decision about the applicability of Article 12 would portend a flood of Article 12 claims. Wilson reinforces that conclusion because the segregation of Appellee from the rest of the jail population avoided the Article 12 issue altogether. But segregation also involves deprivation; of social interaction with other people and potentially of privileges (e.g., Appellee’s segregation meant that he did not have television privileges). The Government may avoid Article 12 claims by segregating military prisoners when they are held in civilian facilities, but it will invite a multitude of claims about the conditions of that segregation.

Case Links (Wilson):
AFCCA opinion (2012)
AFCCA opinion (73 M.J. 529)
Blog post: The back-to-the-future theory of certification?
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but also holding that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF affirms the decision of the Air Force CCA and answers in the negative both the issue certified by the Judge Advocate General of the Air Force and the issue granted on petition of Senior Airman McPherson.

Judge Stucky writes for the court joined by all by Chief Judge Baker, who dissents from the majority’s conclusion about the applicability of Article 12 but concurs with the majority’s requirement for exhaustion of administrative remedies prior to judicial relief.

McPherson and the companion case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), are about the application of Article 12 of the UCMJ, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

It is the foreign nationals provision at issue in McPherson, because after McPherson was convicted of numerous offenses at a special court-martial and sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge, he was initially confined at the Elmore County Detention Facility in Idaho (a somewhat-common practice, explicitly permitted by Article 58, used when there is no readily available military confinement facility). He was in that civilian facility for 15 days, and “for eight of those days, he was housed in an open bay with a foreign national known only as ‘The Mexican,’ who was awaiting deportation hearings.” Slip op. at 3-4 (quoting United States v. McPherson, 72 M.J. 862, 869 (A.F. Ct. Crim. App. 2013)). He did not complain about this co-mingling at the time or in his post-trial submissions to the convening authority, however he did raise the issue during the automatic review by the CCA.

The CCA reviewed the issue without specifically addressing the applicability of Article 12. Instead, the CCA determined that there was no excuse for failing to seek administrative relief and declined to provide any judicial relief. But the Government sought en banc reconsideration by the CCA, asserting that “the CCA had ‘implicitly establishe[d] as a matter of law in the Air Force that Article 12 applies to civilian confinement facilities.'” Slip op. at 4 (modification in original). The CCA denied the Government’s motion for reconsideration. The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

CAAF subsequently granted review of a second issue upon petition by McPherson:

There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

This procedural posture establishes the Government as appellee and cross-appellant, and McPherson as appellant and cross-appellee, but I will refer to them as “the Government” and “McPherson” for simplicity.

Judge Stucky’s majority opinion answers both issues in the negative and wholly affirms the opinion of the CCA, explicitly establishing as a matter of law that Article 12 applies to civilian confinement facilities and firmly embracing the requirement that judicial relief for a violation of Article 12 requires that the prisoner first exhaust administrative remedies. While both sides lose in this analysis, I think the greater loss is suffered by the Government.

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Yesterday, on August 21, 2014, CAAF issued its opinions in United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), and United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.). Judge Stucky writes for the court in both cases, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but that a service member must exhaust all administrative remedies prior to seeking judicial intervention for a violation of Article 12. Chief Judge Baker dissents in part from both cases, disagreeing on the majority’s conclusion about the applicability of Article 12.

I will publish a full analysis of each opinion on Monday.

Of the 32 cases argued at CAAF this term, only one remains undecided: United States v. MacDonald, No. 14-0001/AR (CAAFlog case page).

CAAF decided the Army case of United States v. Davenport, No. 13-0573/AR, 73 M.J. 373 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A majority of the court finds that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reverses the CCA and remands the case for the convening authority to take action consistent with R.C.M. 1103(f).

Judge Ryan writes for the court. She is joined by all but Chief Judge Baker, who dissents because he finds that the missing testimony was not so important to the findings of guilt as to render the transcript nonverbatim.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. He was acquitted of a charge of money laundering. He was sentenced to confinement for two years, reduction to E-1, and a bad-conduct discharge. The convening authority approved only one year of confinement, but otherwise approved the adjudged sentence.

When the case arrived at the Army CCA for appellate review it was discovered that:

[M]issing from the record [of trial] was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. Although the court reporter recorded the testimony, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged, preventing recovery of the original recorded data. The testimony’s omission from the record was first discovered by appellate defense counsel on appeal to the ACCA. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.

Slip op. at 5. Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript in Gaskins was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record.

In Davenport, the Army CCA ordered a DuBay (post-trial factfinding) hearing “to provide the Government an opportunity to reconstruct SGT MS’s testimony.” Slip op. at 6. The DuBay revealed that missing testimony primarily – but not necessarily exclusively – related to the money laundering charge of which Appellant was acquitted. The case was returned to the CCA where:

After considering the findings from Appellant’s DuBay hearing, the ACCA found that “the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS.” Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4. Despite this fact, and in tension with the DuBay military judge’s conclusion that the substance and extent of SGT MS’s testimony was “not altogether clear” and that the testimony only “mostly” related to two money laundering charges of which Appellant was acquitted, the ACCA found that SGT MS “had no information relevant to any offense of which Appellant was convicted” and that his testimony “only related to the two money laundering specifications of which appellant was acquitted.” Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)

Slip op. at 7. The CCA then affirmed the sentence, finding that “the record in appellant’s case [was] both substantially verbatim and complete for appellate review purposes.” Slip op. at 8 (citation and marks omitted).

Judge Ryan’s opinion of the court focuses on CAAF’s disagreement with the CCA’s conclusion, and she writes that the majority is “hard pressed to agree with the ACCA that we can be certain of what SGT MS testified about.” Slip op. at 12.

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