CAAFlog » CAAF Opinions

CAAF decided the Air Force case of United States v. Janssen, No 14-0130/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, April 15, 2014, finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge. CAAF finds that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

Judge Stucky writes for a unanimous court.

As a civilian, Judge Soybel (as he is repeatedly referred to in CAAF’s opinion) was first appointed to the AFCCA by the Judge Advocate General of the Air Force on January 25, 2013. He promptly got to work, participating in numerous cases, including Janssen. However, on May 23, 2013, the CCA recalled all of those cases. Then, on June 25, 2013, the Secretary of Defense issued a memorandum that re-appointed Judge Soybel to the CCA, and he again participated in numerous cases, again including Janssen. The CCA refused to reconsider those cases, and Janssen appealed to CAAF.

Judge Soybel’s appointment was presumably made to assist with the backlog at the AFCCA, and together the backlog and the appointment issue were our #9 military justice story of 2013. But CAAF summarily remanded numerous cases over the summer due to concerns with the appointment, and then on December 19, 2013, it granted review in Janssen and ordered expedited briefing on a single issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

CAAF also granted numerous trailers (I’m tracking eight: Jones, Grawey, Annis, Burns, Johnson, Dixon, Albright, and Peacock). But the controversies continued to mount, as CAAF rejected the Government’s brief of the granted issue in an order that stated:

On consideration of Appellee’s brief and its January 15, 2014, letter to the Clerk, [citing supplemental authority] we find that they insufficiently address the assigned issue and Appellant’s argument. . . .

The Government submitted a second brief that surveyed the legal landscape and posed the ultimate question for who has the power to make such an appointment of “if not the Secretary of Defense, then whom?” Gov’t Second Br. at 13. Judge Stucky answers, “the President”:

The conclusion is clear: While Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint appellate military judges, it has not done so. This being the case, the appointment of Judge Soybel was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers. See Edmond, 520 U.S. at 660. Since this was not done, his appointment as an appellate military judge is invalid and of no effect.

Slip op. at 13.

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CAAF decided the Air Force case of United States v. Talkington, No. 13-0601/AF, 73 M.J. 212 (CAAFlog case page) (link to slip op.), on Monday, April 7, 2014, finding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” and that “while an accused may raise a collateral consequence in an unsworn statement . . . the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused.” Slip op. at 2. CAAF affirms the sentence and the decision of the Air Force CCA.

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

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three attempts in violation of Article 80, UCMJ: two specifications of attempted aggravated sexual assault and one specification of attempted abusive sexual contact. He was sentenced to reduction to E-1, total forfeitures, confinement for eight months, and a bad-conduct discharge.

Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I will have to register as a sex offender for life . . . I am not very sure what sort of work I can find.” Slip op. at 3. The Government then asked the military judge to instruct the members to disregard the possibility of sex offender registration when determining a sentence. Over Defense objection, the judge gave a lengthy instruction to the members that included:

However, as a general evidentiary matter, evidence regarding possible registration as a sex offender or the potential of an administrative discharge, and the consequences thereof, would be characterized as a collateral consequences [sic], and thus inadmissible outside of the context of an unsworn statement. . . . Possible collateral consequences of the sentence, beyond those upon which you are instructed, should not be a part of your deliberations other than as I have earlier discussed.

As to sex offender registration requirements . . . [e]ven if such requirements were predictable, whether or not the accused will be or should be registered as a sex offender and whether he will be or should be administratively discharged is not a matter before you. Rather, determining an appropriate sentence for this accused, in accordance with my instructions, is your charge. In short, use of this limited information is fraught with problems.

Slip op. at 4. The Air Force CCA affirmed the convictions without considering the propriety of this instruction, and CAAF granted review of one issue:

Whether the military judge erred by instructing the members that consideration of sex offender registration is “not a matter before them” and “fraught with problems.”

Judge Ryan’s opinion of the court can be summarized in one powerful sentence:

The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing.

Slip op. at 8 (citation omitted). This is, to say the least, a dramatic victory for the Government.

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CAAF decided the Army case of United States v. Kearns, No. 13-0565/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Friday, March 21, 2014, finding that Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient, and affirming both the findings and the published decision of the Army Court of Criminal Appeals.

Judge Ohlson writes for a unanimous court (and it’s his first opinion of the court).

Appellant was convicted in absentia, contrary to pleas of not guilty entered on his behalf, by a general court-martial composed of officer members, of making a false official statement, aggravated sexual assault of a child, wrongful transportation of a minor through interstate commerce, and a general disorder, in violation of Articles 107, 120, and 134, UCMJ. He was sentenced to confinement for four years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

Judge Ohlson’s opinion provide a succinct summary of the facts:

During the relevant time period, Appellant was a twenty-two year-old soldier stationed at Fort Bliss, Texas. In both November and December of 2009, while Appellant was home on leave in Pennsylvania, he had sexual intercourse with K.O. K.O. was fifteen years old at the time and Appellant knew she was a minor. When Appellant returned to Fort Bliss, Appellant and K.O. stayed in contact via text messages and phone calls.

At some point in their relationship, K.O. falsely told Appellant that she had been sexually assaulted by a family member. Thereafter, in January 2010, Appellant paid a female friend to transport K.O. from Pennsylvania to Texas. However, before the friend and K.O. (along with another minor female) reached the Fort Bliss area, they were stopped by Texas law enforcement for a traffic violation. The police determined that K.O. and the other young female were minors and possible runaways.

Slip op. at 2-3. The defense asserted at trial that Appellant “facilitat[ed] K.O.’s travel across state lines [in order] to remove her from a sexually abusive environment,” and not for the purpose of illegal sex. Slip op. at 4. On review, the Army CCA considered various formulations from the federal circuits of the intent required to violate  § 2423(a). In a published opinion, the court concluded that “as long as the illegal sexual activity is a purpose of the transport and not merely incidental to the travel, the requisite intent is met.” United States v. Kearns, 72 M.J. 586, 587 (A.Ct.Crim.App. 2013) (link to slip op.). The CCA found that Appellant had such intent based upon Appellant’s prior sexual activity with KO, the fact that KO had romantic feelings for Appellant and sent him a sexually suggestive picture, and Appellant’s initial denials of his role in KO’s transportation to Texas and their prior sexual contact.

CAAF granted review to determine:

Whether the evidence was legally sufficient to prove that Appellant had the intent to engage in criminal sexual conduct with KO, a minor, when he facilitated KO’s travel in interstate commerce and was found guilty in Specification 1 of Charge III of violating 18 U.S.C. § 2423(a).

Judge Ohlson begins his discussion by explaining that § 2423(a) states, in pertinent part:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Slip op. at 8.

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CAAF decided the Air Force case of United States v. Danylo, No. 13-0570/AF, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Monday, March 24, 2014, narrowly deciding that the delays in the case do not rise to the level of a violation of Appellant’s Sixth Amendment right to a speedy trial, and that the military judge did not err is his speedy trial analysis, affirming Appellant’s conviction and the decision of the Air Force CCA.

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

Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to conditional pleas of guilty entered in accordance with a pretrial agreement, of use and distribution of marijuana and cocaine, introduction of marijuana, and assault consummated by a battery, in violation of Articles 112a and 128. He was sentenced to a bad-conduct discharge and confinement for 10 months. The pretrial agreement had no effect on the adjudged sentence because it only capped the confinement at time served, which was 350 days.

But during that 350 days of pretrial confinement Appellant made numerous speedy trial demands, and he even won dismissal of the charges on speedy trial grounds. However, the Government appealed, and 170 days passed (with Appellant still confined) before the Air Force CCA issued an opinion reversing the trial judge’s decision and reinstating the charges. Appellant again moved for dismissal at the trial stage, but the judge denied the motion, focusing on just the delay after the CCA’s decision on the Government’s appeal (reasoning that the CCA had resolved all prior delay in its decision).

On direct appeal, the AFCCA again reviewed the delay prior to the judge’s dismissal, and again found no violation of Appellant’s speedy trial right. CAAF then granted review of two issues:

I. Whether the military judge erred when he only considered the period of time of appellant’s Article 62, UCMJ, appeal for the purpose of his speedy trial motion.
II. Whether the appellant was denied his Sixth Amendment right to a speedy trial when his court-martial occurred 350 days after he was placed in pretrial confinement.

Judge Stucky begins his majority opinion by noting the limited scope of CAAF’s review in this case, eliminating the possibility that this case might resurrect the dead Article 10 (our #10 story of 2013). CAAF does not consider the speedy trial provisions of either Article 10 or Rule for Courts-Martial 707, as “the only assigned issue in his petition, and the issue this Court granted, was the Sixth Amendment issue.” Slip op. at 6. That issue is analyzed with the familiar four-factor test from Barker v. Wingo:

(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.

Slip op. at 6 (quoting United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))).

The majority easily resolves both the first and third factors, as the Government conceded that both favored Appellant. But the bulk of the court’s analysis – and Chief Judge Baker’s dissent – is focused on the second and fourth factors.

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CAAF decided the Army case of United States v. Gutierrez, No. 14-0009/AR, 73 M.J. 172 (CAAFlog case page) (link to slip op.), on Thursday, March 20, 2014. The court finds that Appellant’s conviction for stalking is legally sufficient, affirming the findings and the summary decision of the Army CCA.

Judge Erdmann writes for a unanimous court.

Appellant was charged with one specification of rape in violation of Article 120 (2006), and one specification of stalking in violation of Article 120a. He pleaded not guilty to both offenses. A general court-martial composed of members with enlisted representation convicted Appellant of only the stalking, acquitting him of the rape. The panel sentenced Appellant to confinement for one year, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Army CCA summarily affirmed the findings and sentence.

To be guilty of stalking, Appellant must have engaged in a course of conduct that would cause a reasonable person to fear death or bodily harm. The course of conduct presented by the Government in this case included the facts of the rape allegation of which Appellant was acquitted. So on appeal, Appellant “asserts that without the context of his initial August 10 visit to AM’s [the victim's] home culminating in rape, a panel could not have found that the subsequent nonthreatening phone calls, text messages and visits would have induced fear of bodily harm in a reasonable person.” Slip op. at 7. CAAF granted review to determine:

Whether the evidence of stalking was legally sufficient where Appellant was acquitted of rape and the prosecution relied on the evidence of rape to prove stalking.

And in a short discussion, Judge Erdmann concludes:

Although Gutierrez was acquitted of the rape specification, the government is correct in noting that the panel could independently consider the evidence supporting that incident while deliberating on the stalking charge. Without question the evidence before the panel as to the incident on August 10, 2010, could have been found by the members to establish that Gutierrez engaged in conduct directed at AM that would cause a reasonable person to fear death or bodily harm, including sexual assault. The evidence was also sufficient to establish that Gutierrez either knew or should have known that such conduct would place AM in reasonable fear of bodily harm or sexual assault and the panel could also have concluded that Gutierrez’s conduct induced reasonable fear in AM.

Slip op. at 10-11. A footnote quotes United States v. Powell, 469 U.S. 57, 64 (1984) to explain how this legal sufficiency analysis protects against the apparent irrationality of an acquittal for rape but a conviction for stalking that was based in part on the alleged rape:

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To paraphrase T.S. Eliot, this is the way United States v. Lee ends, not with a bang, but a waiver. Ok, that may be a little dramatic, but you get the point. On March 7, 2014, CAAF decided the Marine Corps case of United States v. Lee, No. 07-0725/MC, 73 M.J. 166 (CAAFlog case page) (link to slip op.).  In a unanimous decision, the Court held that the Appellant “waived any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from the additional time spent on the Texas Public Sex Offender Registry prior to the waiver,” and that “the remaining 141-day period of review between the sentencing portion of Appellant’s rehearing and the convening authority’s action did not amount to a due process violation.” Slip op. at 2.

The granted issue in this case was whether the NMCCA erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of Appellant’s name from the Texas Sex Offender Registry. Slip op. at 2. Before reaching the substance of the granted issue, the Court had to determine whether the Appellant waived review of the delay in the granted issue when he pleaded guilty to new charges after his case was overturned by NMCCA. Because CAAF resolves the threshold question of waiver in favor of the Government, they do not reach the main issues presented by the bulk of the delay.

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CAAF decided the Marine Corps case of United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (CAAFlog case page) (link to slip op.), on Thursday, March 6, 2014. The court “hold[s] that significant prosecutorial misconduct occurred, but that the error was ultimately not prejudicial,” affirming the judgment of the NMCCA and Appellant’s convictions. Slip op. at 1. But while CAAF is unanimous in its finding of error, it is sharply divided on the question of prejudice.

Judge Stucky writes for the majority. Chief Judge Baker and Judge Ohlson both dissent. Each writes separately, with the Chief Judge also joining Judge Ohlson’s separate opinion.

CAAF granted review of this case to determine:

Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in finding no material prejudice to Appellant’s substantial right to a fair trial after it assumed, without deciding, that trial counsel’s actions amounted to misconduct, and whether the military judge’s curative instructions sufficiently addressed the cumulative nature of such conduct as well as any corresponding prejudice in light of the factors identified in United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

Appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of using “spice” in violation of a general order, signing a false official statement, and larceny of military property, in violation of Articles 92, 107, and 121, UCMJ. He was sentenced to confinement for three months and a bad-conduct discharge.

But throughout the trial, “trial counsel repeatedly and persistently elicited improper testimony, despite repeated sustained objections as well as admonition and instruction from the military judge.” Slip op. at 13. The counsel is not identified by name (though, curiously, many of the witnesses are). But Judge Stucky dedicates 11 pages of his 18-page opinion of the court to a punishing account of the prosecutor’s failings. The conclusion he draws from these failures is a mixed-bag:

It matters not that trial counsel seems to have been merely inexperienced, ill prepared, and unsupervised in this case. Although one may wonder what her supervisors were doing during the course of Appellant’s trial, the prosecutorial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor, and we find none here.

Slip op. at 14. However, turning to the question of whether this misconduct denied Appellant a fair trial, Judge Stucky gets more explicit:

The prosecutorial misconduct in this case was sustained and severe. Trial counsel attempted to elicit improper testimony from nearly every witness called during the Government’s caseiin-chief, and made arguably improper argument during her closing argument. She repeatedly appeared unable to either understand or abide by the military judge’s rulings and instruction during the two-and-a-half day trial on the merits.

Slip op. at 15. But the trial counsel’s apparent inability to “understand or abide” isn’t enough to win Appellant relief.

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CAAF decided the Air Force case of United States v. Finch, No. 13-0353 and 13-5007/AF, 73 M.J. 144 (CAAFlog case page) (link to slip op.), on Thursday, March 6, 2014. The court narrowly affirms the decision of the Air Force Court of Criminal Appeals, rejecting Appellant’s claim that the maximum authorized confinement for his child pornography offenses totals just eight months, and finding no substantial basis to question the providence of Appellant’s pleas of guilty to possession and distribution of child pornography in violation of clauses 1 and 2 of Article 134.

Judge Erdmann writes for the court, joined by Chief Judge Baker and Judge Stucky. Judge Ryan and Senior Judge Effron both dissent, and both write separate opinions with Judge Ryan also joining Senior Judge Effron’s dissent.

Appellant pleaded guilty, at a general court-martial composed of a military judge alone, to one specification of possession of child pornography and one specification of distribution of child pornography, both in violation of Clauses 1 and 2 of Article 134. He was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. Appellant’s offense was discovered in 2008 and his court-martial occurred in November 2011, just a month before the President defined a child pornography offense under Article 134.

The parties agreed during the trial that Appellant faced a maximum punishment that included confinement for 30 years. Yet on automatic review at the CCA, Appellant asserted that the maximum authorized punishment was dramatically lower because the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors. Appellant’s claim was bolstered by the fact that during the plea inquiry the military judge stated:

There is no requirement that the images in this case include actual images of minors; That is, the wrongful and knowing receipt and possession of visual depictions containing sexually explicit images of persons indistinguishable from minor children, whether actual or virtual, when determined to be service-discrediting conduct and conduct prejudicial to good order and discipline, is an offense under Article 134.

Slip op. at 5 (emphasis added). And it’s true that sexually explicit images of things that appear to be minors but aren’t (i.e., so-called “virtual child pornography”) may support a prosecution under Article 134 while they are insufficient to support a child pornography prosecution under the United States Code. See Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) (link). Because of this, CAAF determined in United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (link to slip opinion), that the maximum confinement for possession of what only “appears to be a minor” engaging in sexually explicit conduct is just four months. This distinction was eliminated with the President’s enumeration of a child pornography offense under Article 134 (that treats actual and virtual images the same), but if Appellant could convince the court that his plea encompassed only virtual images, he would get significant relief.

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CAAF decided the certified Army case of United States v. Hines, No. 13-5010/AR, 73 M.J. 119 (link to slip op.) (CAAFlog case page) on Monday, February 24, 2014. The court reverses the decision of the Army CCA that found that the fraudulent receipt of a housing allowance constitutes a separate larceny for each month, and affirms Appellee’s guilty plea and the sentence.

Judge Ryan writes for a unanimous court.

Appellee was a Sergeant stationed at Fort Bragg, NC, in October, 2008, when he began to steal housing and family separation allowances failing to inform the military of his divorce and subsequently asserting on numerous forms that he was still married. Over the following three years and multiple assignments Appellee received various undeserved allowances, including the Basic Allowance for Housing (BAH) at the higher “with dependents” rate, and the Family Separation Allowance (FSA).

The Government discovered Appellee’s fraud and aggregated the improperly-received monthly allowances to charge him with two specifications of larceny and one specification of wrongful appropriation of military property, all of a value of more than $500. Appellee then pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of false official statement, two specifications of larceny of military property of a value more than $500, and one specification of wrongful appropriation of military property of a value more than $500, in violation of Articles 107 and 121, UCMJ. He was sentenced to confinement for three months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved the forfeitures but otherwise approved the sentence.

On review, the Army CCA rejected the Government’s aggregate theory of the case, finding that Appellee “never satisfactorily admitted to a single larceny in an amount over $500.00 and only providently admitted to a series of separate larcenies each in an amount less than $500.00 and each, at a month apart, at substantially different times.” This part of the CCA’s decision created a split with the Navy-Marine Corps CCA that specifically adopted the aggregated, “continuing larceny” theory in United States v. Lepresti, 52 M.J. 644, 653 (N.M. Ct. Crim. App. 1999). The court also found that Appellee’s plea did not satisfactorily resolve the question of whether he was entitled to the housing allowance at the lower individual (without-dependents) rate. The CCA modified the findings but affirmed the sentence as approved by the convening authority.

The Army JAG then certified two issues to CAAF:

I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”

II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee's] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”

Judge Ryan answers both questions in the affirmative, expressly adopting the reasoning of the 5th Circuit Court of Appeals in United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979), and concluding that any questions of Appellee’s lack of entitlement to the lower individual rate were resolved during the plea inquiry.

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CAAF decided the Air Force case of United States v. Wicks, No. 13-6004/AF, 73 M.J. 93 (CAAFlog case page) (link to slip op.), on February 20, 2014. The case is an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone. The search revealed evidence that Appellant engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed. But CAAF reverses the Air Force CCA and reinstates the military judge’s ruling suppressing the results of the search.

Chief Judge Baker writes for a near-unanimous court. Judge Stucky writes a very brief separate opinion that concurs in the vast majority of the Chief Judge’s opinion, but dissents on the exclusion of text messages from two specific identified trainees.

Appellant is a Technical Sergeant (E-6), and he was involved in a personal relationship with another Technical Sergeant (TSgt) named Ronda Roberts. Both were military training instructors. One day in November 2010, while Appellant was sleeping, TSgt Roberts accessed his mobile phone without his permission. She found “disturbing text messages.” Slip op. at 4. Soon after, the relationship between Appellant and TSgt Roberts ended. A few months later, in May 2011, TSgt Roberts stole Appellant’s mobile phone and conducted a number of searches, reading text messages and viewing pictures and videos. From these searches TSgt Roberts concluded that Appellant was communicating with trainees and confronted Appellant. “Appellant acknowledged sending text messages to recruits, but told her to “[g]et out of [his] face.’” Slip op. at 5.

In January 2012, a general inquiry into instructor misconduct resulted in an interview of TSgt Roberts by Detective Rico of the Air Force Security Forces Office of Investigations. Detective Rico didn’t suspect Appellant of any misconduct until TSgt Roberts told Detective Rico about Appellant’s mobile phone. Eventually TSgt Roberts gave Detective Rico a SIM card, and then she gave Detective Rico the phone that she stole from Appellant (while lying about its origin). Over the course of about a week, Detective Rico consulted with base legal three times about how to proceed, but never sought a search warrant or authorization. Detective Rico ultimately conducted three searches of Appellant’s phone: She generally scrolled through the contents and viewed text messages; she delivered the phone to the local county sheriff’s office for forensic extraction; and she sent the phone to private company for a detailed forensic analysis (conducted at the request of the trial counsel).

Appellant moved to suppress evidence obtained from his cell phone and all derivative evidence, and the military judge granted the motion. The judge ruled that “there were repeated violations of the accused’s rights in that he had a reasonable expectation of privacy in his phone which was stolen.” Slip op. at 2-3. This reasonable expectation of privacy is crucial to CAAF’s resolution of this case, and the court’s decision may have far broader implications.

For instance, last month the Supreme Court granted review in two cases that address privacy in the context of mobile telephones that were searched after their owners were arrested by police (as part of a “search incident to arrest”): Riley v. California and United States v. Wurie. The cases are discussed in this SCOTUSblog post that explains that, “Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest.” Chief Judge Baker’s opinion in Wicks reads like a preview of what the Supreme Court might say in Riley and Wurie. He begins his majority opinion by considering the Fourth Amendment interests at stake, and he makes a significant citation to the decision of the First Circuit in Wurie that is now before SCOTUS:

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Today CAAF decided United States v. Wicks, No. 13-6004/AF (CAAFlog case page) (link to slip op.). Wicks is an interlocutory appeal of a military judge’s ruling that suppressed the fruits of a search of Appellant’s cell phone. The Air Force CCA granted the Government appeal and reversed the judge’s ruling. CAAF now reverses the CCA and reinstates the judge’s ruling on the basis that “the military judge did not err in concluding that the Government’s search of Appellant’s cell phone violated Appellant’s reasonable expectation of privacy.” Slip op. at 3.

I’m reviewing the opinion now and will post my analysis tonight or tomorrow morning.

CAAF also granted review in an interesting looking Coast Guard case:

No. 14-0265/CG.  U.S. v. Jaason LEAHR.  CCA 1365.  Review granted on the following issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.
II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.
III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

The CGCCA’s opinion is available here.

CAAF decided the Army case of United States v. Moss, No. 13-0348/AR, 73 M.J. 64 (link to slip op.) (CAAFlog case page) on Monday, January 27, 2014. A sharply divided court declines to address any of the granted issues in the case, which questioned whether Appellant received ineffective assistance from her military defense counsel when he gave an unsworn statement on her behalf during her trial in absentia. Instead, a narrow majority of the court finds that Appellant did not authorize the appeal to CAAF, and it vacates the grant of review.

Judge Erdmann writes for the court, joined by Judges Stucky and Ryan. Chief Judge Baker writes a lengthy dissent, joined by Senior Judge Effron.

Appellant was absent from her unit for approximately three years before she was captured and charged with desertion. Her detailed defense counsel successfully negotiated a pretrial agreement that capped her eventual confinement at six months, and they began planning her sentencing case. Then, two weeks before trial, Appellant again took flight (amazingly, she was not held in pretrial confinement pending trial). Appellant was then tried in absentia and convicted, by a special court-martial composed of officer members, of one specification of desertion in violation of Article 85, UCMJ.

But during the sentencing phase of the court-martial, Appellant’s detailed defense counsel read an unsworn statement to the panel in the first person, representing that it was Appellant’s statement. The statement included reference to a sick aunt, “Viola.” But the Government then called Appellant’s father in rebuttal, and he explained that there is no Aunt Viola. Appellant was then sentenced to reduction to E-1, forfeiture of $978.00 pay per month for twelve months, confinement for six months, and a bad-conduct discharge.

Best I can tell, Appellant’s whereabouts are still unknown. But she signed routine forms before deserting the second time that caused her to be assigned appellate defense counsel. That counsel made the claim of ineffective assistance of counsel that was rejected by the Army CCA and that CAAF was to consider (though, for reasons discussed in my argument preview, I think CAAF would have firmly rejected the claim). But at oral argument before CAAF, the court got very curious about whether Appellant had personally authorized the appeal of the CCA’s decision (a requirement discussed in United States v. Larneard, 3 M.J. 76, 82 (C.M.A. 1977)), and the court ordered additional briefing on four specified issues (discussed here), including:

Whether there is any evidence in the record that the Appellant has authorized an appeal to this Court, and if there is no such authorization, is there nonetheless a continuing duty to represent the Appellant, and if so, from where does this duty derive?

Judge Erdmann’s opinion explains that the appellate defense counsel acknowledges that Appellant did “not signed a specific authorization for appeal to this court nor had he spoken to her and obtained a verbal authorization to appeal on her behalf.” Slip op. at 6. Rather, he argued that:

Moss’s completion of the “Post Trial and Appellate Rights Advisement” constituted an implied authorization for such an appeal, and, when combined with counsel’s ethical duty of continued representation, he was required to pursue the appeal before this court on Moss’s behalf.

Slip op. at 6. Notably, Judge Erdmann’s majority opinion refers to Moss as “Moss,” while Chief Judge Baker’s dissent refers to her as “Appellant.” But the majority finds the “Post Trial and Appellate Rights Advisement” insufficient to authorize the appeal to CAAF:

ACCA. The language concerning a possible appeal to this court was informative only, and Moss’s exercise of her right to counsel before the ACCA cannot be construed to authorize a subsequent appeal to either this court or the Supreme Court.

Slip op. at 11. Surprisingly, the majority reaches this conclusion despite the parties agreeing otherwise:

The parties also agree that Moss’s completion of the “Post Trial and Appellate Rights Advisement” reflected her intent to appeal to this court and therefore constituted an implied authorization to proceed with the appeal.

Slip op. at 9. Instead, Judge Erdmann writes that “the attorney-client relationship was limited to representation before the ACCA.” Slip op. at 13. And he concludes that “since the decision to appeal to this court is personal to an appellant, and because Moss did not authorize the appeal, this court lacks statutory jurisdiction under Article 67(a)(3) and the appeal must be dismissed.” Slip op. at 14.

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CAAF decided the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page) on Wednesday, January 15, 2014. The court unanimously agrees with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF narrowly finds that this error was prejudicial to Appellant, reversing the decision of the Air Force CCA and setting aside the findings of guilty while authorizing a rehearing.

Judge Stucky writes for the court, joined by Judges Erdmann and Ohlson. Chief Judge Baker files a separate opinion that is joined by Judge Ryan. The separate opinion is captioned as a dissenting opinion, but the dissenters concur with the majority in part.

A female Airman accused Appellant of sexually assaulting her while she was incapacitated by alcohol. Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI), and initially stated that he had consensual sexual intercourse with the female Airman. But as the interrogation progressed over the course of a few hours, Appellant eventually admitted that the female was unconscious when he began having sex with her.

At trial, the Defense tried to show that this later admission was false, caused by AFOSI’s interrogation techniques. But an AFOSI investigator testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation. Eventually the Defense specifically objected to “human lie detector” testimony from the agent, but the judge overruled the objection and then gave no specific instructions to the members about such testimony.

The Air Force CCA found error, concluding that the agent’s “overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions,” which is improper. Knapp, ACM 37718, slip op. at 11. But the CCA affirmed the conviction finding that any prejudice was outweighed by inconsistencies and contradictions in Appellant’s statements during the interrogation, and by the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. CAAF then granted review to determine if the admission of the testimony was error, with a three-part issue:

Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.

Judge Stucky begins his majority opinion by noting two important themes in the case. First is the requirement that the military judge give “a prompt cautionary instructions to ensure that the members do not make improper use of [human lie detector] testimony.” Slip op. at 6. Second is that, “A timely and specific objection [from the Defense] is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal.” Slip op. at 7. The entire court is in agreement on both of these themes. The Appellant forfeited the error by failing to make a timely objection, but the military judge could have cured it by giving an appropriate instruction.

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CAAF decided the Air Force case of United States v. Passut, No. 13-0518/AF, 73 M.J. 27 (link to slip op.) (CAAFlog case page), on January 8, 2014, finding that a civilian AAFES employee was performing a military function when Appellant lied to her to get checks cashed, affirming Appellant’s pleas of guilty to making false official statements and the decision of the Air Force CCA.

Chief Judge Baker writes for the court, joined by Judges Erdmann and Ryan and Senior Judge Effron. Judge Stucky writes separately, concurring in the result.

Appellant pleaded guilty to numerous offenses at a general court-martial, and was sentenced to confinement for 10 months, reduction to E-1, and a bad-conduct discharge. Among those offenses were five specifications of making false official statements in violation of Article 107, arising from Appellant’s check-cashing activities at the base exchange. Three of these specifications addressed false statements that Appellant made to Army & Air Force Exchange Service (AAFES) employees, and the other two addressed false statements he made to employees of a bank located within the exchange facility. The statements all involved Appellant’s obscurement of his social security number on his identification card and his presentation of a different person’s social security number when asked for the number (they asked to determine if he had passed bad checks before, which he had).

After Appellant pleaded and was sentenced, CAAF decided the twin Article 107 cases of United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013) (CAAFlog case page), and United States v. Capel, 71 M.J. 485 (C.A.A.F. 2013) (CAAFlog case page), clarifying the circumstances that make a statement “official” for Article 107 purposes.

On review, the Air Force CCA analyzed Passut’s five statements to determine if they were official statements based on the three types of official statements detailed in Spicer. The CCA set aside the findings of guilty to the two specifications involving the bank employee, finding that the bank was a civilian entity that had no affiliation with the military beyond being a tenant in the exchange facility. However, the CCA affirmed the findings of guilty to the three specifications involving false statements made to the AAFES employees, finding that the civilian AAFES cashiers were performing military functions. Appellant appealed this finding and CAAF granted review to determine:

Whether a statement made to an AAFES employee for the purpose of cashing a worthless check satisfies the “official” element of a false official statement.

A unanimous CAAF finds that the statements were official, with Judge Stucky writing separately to emphasize his continued disagreement with the reasoning of Spicer (where he dissented). Chief Judge Baker, who wrote for the court in Spicer, explains:

AAFES — which is governed by service regulations and whose profits are fed back into the military — has a closer and more intricate relationship to the armed forces, a relationship sufficient to establish a military function.

Passut, Slip op. at 13. The analytical approach that gets the court to this conclusion is based on the nature of the AAFES system, “a joint, nonappropriated fund instrumentality of the Department of Defense” (slip op. at 9), with a “significant role in maintaining servicemembers’ morale and welfare while also providing essential services” (slip op. at 12), and that makes “millions of dollars in annual contributions and [has] a continuous presence on bases, installations, and other military sites across the world” (slip op. at 12). It has practically nothing to do with the check cashing activities that formed the basis for Appellant’s false statement and for his challenge before CAAF “that cashing a check is not a military function” sufficient to meet the Spicer test. Slip op. at 6.

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CAAF decided the Air Force case of United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (link to slip op.) (CAAFlog case page) on January 6, 2014, finding that the military judge improperly instructed the members on the offense of attempted persuasion of a minor to create child pornography but that the error was harmless beyond a reasonable doubt, affirming the conviction and the decision of the Air Force CCA.

Judge Erdmann writes for a unanimous court.

Appellant was convicted contrary to his pleas, by a general court-martial composed of officer members, of attempting to communicate indecent language, attempting to transfer obscene material to a minor, and attempting to persuade, induce, entice, or coerce a minor to create child pornography, all in violation of Article 80, UCMJ, and of two specifications of failure to obey a lawful general regulation by misusing his Government-issued computer in connection with the sex offenses, in violation of Article 92, UCMJ. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

The facts of the case are that Appellant:

engaged in a series of sexually explicit Internet chats and phone calls with an undercover civilian sheriff’s deputy who Payne believed to be a fourteen-year-old girl named “Marley.” The communications took place over a period of about a month and a half. As a part of those chats, Payne repeatedly asked “Marley” to send him pictures of herself. Some of these requests were for “nude” pictures, while others were more general.

Slip op. at 3. These actions led to the various attempt specifications. “At trial, Payne’s defense to the[se] specifications focused almost exclusively on the defense of entrapment.” Slip op. at 4. Appellant did not contest that he committed the underlying acts. However, his counsel did object to the findings instructions given to the members by the military judge, asserting that:

For all four specifications under Charge I, we object to your instructions because we do not believe that the government in its pleadings identified the offenses to which you are listing elements. . . .

As I said in the 802 conference, our challenge is this, we have a duty to candor towards a tribunal and to identify any errors and give you a forthright answer, but we also have a competing duty to Staff Sergeant Payne and not to assist the government or even the bench in perfecting elements in charges against him if we think that there’s, perhaps, a right way to do this. And therefore, we simply say that we don’t believe that the court has been able, due to the nature of the pleadings, to properly identify if these are offenses and if so, what those elements would be.

This obstructionism didn’t get a ruling from the judge, but it did lead to the members receiving instructions in which “the government concedes that ‘the military judge did not read the statutory elements of Article 80 [Attempts].’” Slip op. at 6. Appellant was then convicted of three of the four attempt specifications. For reasons unclear in the opinion, the instructions for only one of these three specifications was raised at the CCA and is at issue in the case before CAAF.

Judge Erdmann’s opinion of the court begins with a focus on the defense counsel’s obstructionism (my word) and whether, despite it, the “objection adequately preserved the error [Appellant] now raises on appeal.”Slip op. at 7.

“No,” rules the unanimous CAAF:

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