CAAFlog » CAAF Opinions

CAAF decided the Air Force case of United States v. Oliver, __ M.J. __, No. 16-0484/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 24, 2017. Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, CAAF concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case. CAAF affirms the finding of guilty and the decision of the Air Force CCA.

Judge Sparks writes for the court joined by all by Judge Stucky, who concurs in the result but would have found the error was waived.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged abusive sexual contact by placing in fear in violation of Article 120(h) (2006) in that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – groped a female trainee “by placing her in fear of an impact on her military career through the use and abuse of [his] military rank, position, and authority.” Slip op. at 2 (quoting charge sheet). Oliver’s defense was that the touching occurred but was consensual.

The military judge acquitted Oliver of abusive sexual contact by placing in fear and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object. CAAF granted review to determine:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

In yesterday’s opinion, Judge Sparks grapples with the defense failure to object but ultimately applies last term’s decision in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), to hold that wrongful sexual contact is not a lesser included offense of abusive sexual contact. However, because Oliver’s “theory throughout the court-martial was that [the alleged victim] consented to the sexual activity. . . there is nothing to indicate material prejudice to Appellant’s substantial rights” to notice, and so the conviction is affirmed. Slip op. at 7.

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CAAF decided the Army case of United States v. Tucker, __ M.J. __, No. 17-0160/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2017. With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard. CAAF reverses the CCA’s decision and remands for a new Article 66 review “to evaluate this case in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page].”

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CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.

Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.

CAAF reviewed a single issue:

The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial.

The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF’s five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court “deem[s] the totality of the circumstances in this case to be particularly troubling and egregious,” slip op. at 17, and “conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed,” slip op. at 18.

Leading this majority, Judge Ohlson provides a comprehensive review of CAAF’s UCI jurisprudence, meticulously differentiating between “actual unlawful command influence and the appearance of unlawful command influence.” Slip op. at 6 (emphases in original). He explains that:

[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.

Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.

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CAAF decided the Army case of United States v. Feliciano, __ M.J. __, No. 17-0035/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 17, 2017. Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense. CAAF affirms the decision of the Army CCA and the findings and sentence.

Judge Stucky writes for a unanimous court.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter, heard the female soldier repeatedly say no, and intervened by telling Feliciano: “That if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” Slip op. at 2 (marks omitted). Upon hearing this Feliciano ceased contact with the alleged victim.

CAAF granted review of two issues:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

In today’s opinion, Judge Stucky explains that neither voluntary abandonment nor mistake of fact as to consent were raised by the evidence, and so there was no error in the failure to give the first instruction or in the wording of the second. These conclusions are unsurprising considering the facts. But the opinion also includes a lengthy footnote that distinguishes the uniquely-military special defense from a more-common affirmative defense. Unfortunately, while the distinction in the footnote is clear, the opinion itself seems to blur the line.

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CAAF decided the Army case of United States v. Erikson, __ M.J. __, No. 16-0705/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 9, 2017. CAAF finds that it was not error for the military judge to exclude evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false. Accordingly, the court affirms the summary decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of three issues, all of which were personally asserted by the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Issues II and III are resolved with a footnote to CAAF’s opinion in United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page).

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CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 16-0306/AR (CAAFlog case page) (link to slip op.), on Tuesday, May, 9, 2017. Affirming a published decision of the Army CCA, CAAF finds that if an accused fails to preserve an instructional error with a timely objection or request, then the error is tested for plain error.

Judge Ryan writes for a unanimous court.

In 2013 Private (E-2) Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

On appeal Davis challenged the omission of a mistake instruction. Rejecting the challenge (in an opinion discussed here) the CCA concluded that:

for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. . . . Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

75 M.J. 537, 543-544. This finding of forfeiture was contrary to CAAF’s precedent, and so CAAF granted review to determine:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

Today’s opinion affirms that the CCA got it right, though Judge Ryan lightly scolds the court for intruding on CAAF’s “prerogative to overrule its own decisions.” Slip op. at 5 n.2

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CAAF decided the Army case of United States v. Hukill, __ M.J. __, No. 17-0003/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 – by articulating that “the use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

Chief Judge Erdmann writes for a unanimous court.

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CAAF decided the Army case of United States v. Swift, __ M.J. __, No. 16-0407/AR (CAAFlog case page), on Wednesday, April 26, 2017. Considering “the Government’s surprising assertion that the ACCA’s Article 66(c), UCMJ, review is defensible here,” CAAF finds that the CCA improperly based its review “solely by reference to uncharged conduct.” Slip op. at 11 (emphasis in original). Accordingly, CAAF remands the case for a new Article 66(c) review by the CCA. But the court also finds that any error in the admission of an uncorroborated confession was waived by both the failure to object and an affirmative statement that the defense had no objection.

Judge Ryan writes for a unanimous court.

CAAF granted review of three issues:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.

The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift admitted to touchings during the charged time periods, but he asserted that both were inadvertent. The charges were based on Swift’s admissions, and alleged acts that Judge Ryan refers to as the “Hawaii Bedside Incident” and the “Texas ‘Old Flame’ Incident.” Slip op. at 3. But the prosecution also offered evidence of three other alleged (but uncharged) incidents under Mil. R. Evid. 404(b) and 414: the “Couch ‘Peeing’ Incident,” the “Hawaii Van Indicent,” and the “Texas Pool Incident.” Slip op. at 4-5. The military judge allowed this evidence “without ever actually ruling on whether [it was] admissible under M.R.E. 404(b) or 414.” Slip op. at 8.

On appeal, the Army CCA also “did not rule on whether the incidents of uncharged conduct were admissible under either M.R.E. 404(b) or 414. Instead, the ACCA facially treated them as if they were the charged conduct, concluded the findings of guilty were legally and factually sufficient, and affirmed.” Slip op. at 10. The CCA’s decision “affirmed the findings and sentence, albeit solely by reference to evidence of uncharged misconduct.” Slip op. at 9.

That, explains Judge Ryan, was wrong.

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CAAF decided the Army case of United States v. Haverty, 76 M.J. 199, No. 16-0423/AR (CAAFlog case page) (link to slip op.), on Tuesday, April 25, 2017. Considering a single issue that was specified by the court itself, and applying the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), CAAF finds that recklessness is the minimum mens rea (mental state) to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. The court reverses the appellant’s conviction of violation of Article 92 for requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs with the majority’s conclusion on the mens rea issue but dissents from the majority’s finding of prejudice.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring [SPC BB] to consume alcohol.” Slip op. at 5 (quoting instructions). The alcohol consumption occurred while Haverty helped the other soldier prepare for a field exercise, and the order allegedly violated included a sweeping prohibition against conduct that “unnecessarily causes another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful.” Slip op. at 4 (quoting AR 600-20). That language, incidentally, was changed in 2014 and now requires that the conduct be committed “recklessly or intentionally.” AR 600-20 ¶ 4-19.a(1) (available here); a change that incorporates the standard announced in today’s opinion.

But for Haverty the military judge did not instruct the members on any necessary mens rea to violate the hazing order, and the members returned a finding of guilty. The Army CCA considered numerous issues on appeal but did not address the mens rea required to violate this order. CAAF then specified a single issue questioning the adequacy of the judge’s instructions:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Today’s decision is Judge Ohlson’s fourth opinion of the court on mens rea issued since March of last year. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea. The third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, __ S. Ct. __ (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment.

Yet today’s decision doesn’t begin where those decision ended, but rather starts from basic principles to conclude that violation of a hazing order requires at least that the accused acted recklessly; the same requirement that was added to the order in 2014.

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CAAF decided the Army case of United States v. Ahern, 76 M.J. 194, No. 17-0032/AR (CAAFlog case page) (link to slip op.), on Thursday, April 20, 2017. The court finds that when the appellant’s civilian defense counsel (who is not named in the opinion) affirmatively stated that the defense had no objection to admission of appellant’s statements, that extinguished appellant’s right to complain on appeal about the admission of the statements.

Judge Ryan writes for a unanimous court.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal. The Army CCA affirmed the findings and the sentence.

Ahern’s “convictions are all related to his sexual abuse of his stepdaughter.” Slip op. at 2. Pretext phone calls were conducted during the investigation of the offense, during which Ahern did not directly deny the allegations. He also did not deny the allegations in pretext text messages. The defense moved to admit the text messages while the prosecution moved to admit the phone calls, and the defense had no objection to admission of the phone calls:

[MJ]: Okay. Very well.
And if I believe according to the Court’s notes, those would be the government Motion in Limine to Admit the Pretext Telephone Calls, which has been marked as Appellate Exhibit VII. I received no defense response to that motion. Defense counsel, you are not contesting that motion.
Is that correct?

[CDC]: Correct, Your Honor.

(Brackets in original.) Later, the Government admitted the phone call into evidence, and the following exchange took place:

[ATC]: Your Honor, the government moves to admit Prosecution Exhibit 3 for identification into evidence.

MJ: Objections, defense?

[CDC]: No objections.

Slip op. at 3-4 (marks in original). Then, “during closing argument, trial counsel argued that [Ahern’s] failure to deny the accusations made in the text messages and phone calls was evidence of his guilt.” Slip op. at 4. The defense did not object, however on appeal Ahern asserted that the closing argument was prohibited by Mil. R. Evid. 304(a)(2). That Rule states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

The Army CCA made a first-impression interpretation of the Rule in a decision discussed here, and concluded that the Rule is triggered when an accused is aware of the investigation (determined by an objective test). CAAF then granted review to decide:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

But in today’s opinion Judge Ryan doesn’t answer the granted issue because “Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.” Slip op. at 9.

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While the court decided the case on February 9, 2017 (two days after hearing oral argument), CAAF issued its opinion in the Air Force case of United States v. Ortiz, 76 M.J. 189, No. 16-0671/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Avoiding answering more than necessary to decide the case, CAAF finds no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. Ortiz is a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which raised similar issues, was resolved on mootness grounds, and is now the subject of a petition for certiorari (discussed here).

Judge Stucky writes for a unanimous court.

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CAAF decided the certified Air Force case of United States v. Fetrow, 76 M.J. 181, No. 16-0500/AF (CAAFlog case page) (link to slip op.), on Monday, April 17, 2017. Reviewing the Air Force CCA’s determination of when evidence of uncharged alleged child molestation is admissible under Mil. R. Evid. 414, CAAF agrees with the CCA’s determination that such evidence must (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. CAAF affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

Judge Sparks writes for a unanimous court.

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CAAF decided the Navy case of United States v. Sager, 76 M.J. 158, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on  Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.

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

Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:

On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:

I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?

II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.

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CAAF decided the Army case of United States v. Lopez, 76 M.J. 151, No. 16-0487/AR (CAAFlog case page) (link to slip op.), on Monday March 20, 2017. The court finds error and prejudice in the testimony of a witness that gave her opinion of the appellant’s guilt of the offense of indecent liberties with a child, and it reverses that conviction. But it finds the similar testimony of a second witness, whose testimony supported a conviction of rape, to be harmless.

Judge Stucky writes for the court, joined by all but Judge Sparks who concurs in part but dissents from the court’s reversal of the indecent liberties conviction.

A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and of indecent liberties with a child by exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence. CAAF then granted review, specifying the following issue:

Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

Human lie detector testimony occurs when a witness gives “an opinion as to whether the [other] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). In this case, Judge Stucky’s opinion considers whether human lie detector testimony was improperly admitted in two parts: the first reviewing the testimony of NM (CL’s daughter) to which there was no defense objection at trial, and the second reviewing the testimony of CL to which the defense counsel did object.

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CAAF decided the Marine Corps case of United States v. Bartee, 76 M.J. 141, No. 16-0391/MC (CAAFlog case page) (link to slip op.), on Wednesday, March 15, 2017. A majority concludes that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded, affirming the decision of the Navy-Marine Corps CCA.

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

CAAF granted review of a single issue:

The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

Lance Corporal (E-3) Bartee demanded trial by a general court-martial composed of members with enlisted representation. The convening authority’s staff judge advocate prepared a draft convening order appointing only officers at paygrade 0-4 and above and enlisted personnel at paygrade E-8 and above, and the convening authority signed that order. But Bartee objected to the composition of the panel on the basis that it improperly excluded members of junior ranks.

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