CAAFlog » CAAF Opinions

Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of Chin. 

CAAF decided the certified Air Force case of United States v. Chin, __ M.J. __, No. 15-0749/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 26, 2016. Sharply divided, the court concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact. CAAF affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite Chin’s guilty pleas and a pretrial agreement that agreed to waive all waivable motions.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Senior Judge Sentelle (of the D.C. Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ohlson.

Chin pleaded guilty, in accordance with a pretrial agreement, to numerous violations of Article 92, 121, and 134, largely related to mishandling classified information. He agreed to waive all waivable motions as part of the pretrial agreement and his defense counsel acknowledged at trial that but for the waiver Chin would have objected to multiplicity for findings and sentence. Chin was sentenced to confinement for twelve months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority reduced the confinement to ten months but otherwise approved the adjudged sentence. On review, however, and notwithstanding the trial-stage waiver, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believed should be approved. As a result, the CCA disapproved three of the specifications, but it approved the sentence as approved by the convening authority.

The Judge Advocate General of the Air Force certified the case to CAAF, challenging the authority of the CCA to grant such relief despite the waiver provision of the pretrial agreement with the following issue:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In today’s decision CAAF’s majority concludes that the courts of criminal appeals have not only the power to grant relief despite a trial-stage waiver, but also the statutory obligation to conduct a plenary review of the record to determine whether to grant such relief.

Read more »

CAAF decided the Air Force case of United States v. Killion, __ M.J. __, No.15-0425/AF (CAAFlog case page) (link to slip op.), on April 19, 2016. A divided court holds that the military judge failed to properly instruct the members on the offense of wrongfully using provoking speech because he directed the members to consider the speech from the perspective of a hypothetical average person rather than from the perspective of the actual audience. CAAF reverses the appellant’s conviction for violation of Article 117 and the decision of the Air Force CCA, and remands the case for further review.

Judge Ryan writes for the court, joined by Chief Judge Erdmann and Judge Diaz (of the 4th Circuit, sitting by designation). Judge Ohlson dissents, joined by Judge Stucky who also writes a separate dissenting opinion.

CAAF granted review of two issues in this case:

I. Whether appellant’s conviction for provoking speech is legally insufficient because “under the circumstances” his words were not reasonably likely to provoke violence.

II. Whether the military judge’s instructions regarding provoking speech were deficient under the facts and circumstances of appellant’s case.

At a special court-martial the appellant pleaded guilty to drunk and disorderly conduct and unlawful entry in violation of Article 134, and not guilty to resisting apprehension in violation of Article 95 and wrongfully using provoking speech in violation of Article 117. A panel of members with enlisted representation convicted the appellant of the speech offense, acquitted him of resisting apprehension, and then sentenced him to confinement for 14 days, reduction to E-1, a reprimand, and a bad-conduct discharge.

Only the appellant’s speech offense is at issue in CAAF’s review, and it was based on the following facts:

After a night of excessive drinking, [A]ppellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, [A]ppellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. [A]ppellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.

Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, [A]ppellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douche bags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

Slip op. at 3-4 (quoting CCA’s opinion). Further, despite the appellant’s violent actions and offensive language, the medical personnel attending to him “did not consider responding to Appellant violently.” Slip op. 4. Additionally, medical personnel testified that they were trained to handle unruly patients without reacting violently, and that such reactions were highly unusual.

A conviction for wrongfully using provoking speech in violation of Article 117 requires that the Government prove that the speech was provoking or reproachful, and the Manual for Courts-Martial explains that those terms mean “those words or gestures which are used in the presence of the person to whom they are directed and which a reasonable person would expect to induce a breach of the peace under the circumstances.” Part IV, ¶ 42.c(1), Manual for Courts-Martial (2012 ed.). At trial the appellant’s defense counsel asked the military judge to instruct the members that they were to consider the provoking or reproachful nature of the appellant’s speech in the context of the specific facts and circumstances of the appellant’s case (including the training and experience of the medical personnel who heard the words). However, the military judge denied the defense request and instead instructed the members that

The test to apply is whether, under the facts and circumstances of this case, the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation. Proof that a retaliatory act actually occurred is not required.

Slip op. at 5-6 (emphasis in original).

Writing for the majority, Judge Ryan finds that this instruction was erroneous and that the defense request for a different instruction was sufficient to preserve the error and place the burden on the Government to prove the error harmless beyond a reasonable doubt. Then, considering the defense strategy and the Government’s closing argument, she finds that the error was not harmless.

Judge Ohlson’s dissent, however, reviews the instruction for plain error because he concludes that the appellant’s mere request for a different instruction (and failure to object to the instruction actually given) did not preserve the error. Applying the plain error standard – where the appellant has the burden to prove prejudice – he finds the instruction adequate and would affirm the conviction.

Judge Stucky joins Judge Ohlson’s dissent and would also affirm the conviction, but he also writes separately to suggest that the provoking or reproachful nature of speech should be evaluated not from the perspective of the person to whom the words were directed but rather by the situation in which the words were used.

Read more »

CAAF decided the certified Air Force case of United States v. Atchak, __ M.J. __, No. 16-0054/AF (CAAFlog case page) (link to slip op.), on Tuesday, April 12, 2016. Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this case. The court answers the certified question in the negative and affirms the CCA’s decision that reversed the appellee’s guilty pleas to aggravated assault for engaging in unprotected sexual contact with two fellow servicemen after the appellee was informed that he is HIV-positive.

Judge Ryan writes for a unanimous court.

The appellee pleaded guilty to two orders violations, one specification of dereliction of duty, and three specifications of aggravated assault by a means likely to cause death or grievous bodily injury in violation of Articles 92 and 128, and was sentenced to confinement for three years, total forfeitures, and a bad-conduct discharge. The orders violations and aggravated assaults arose out of the appellee’s unprotected sexual activity with other Airmen after the appellee was informed that he is HIV-positive and was ordered to inform his partners of his status and only engage in protected sexual activity. On appeal, however, the Air Force CCA applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the pleas of guilty to aggravated assault, finding insufficient evidence of a risk of transmission of HIV from the appellee to his sexual partners. The CCA also found that it could not affirm a conviction of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. Accordingly, the CCA dismissed the assault charge and reassessed the sentence (reducing it to confinement for eight months and a bad-conduct discharge).

The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Judge Ryan’s opinion highlights the discretionary nature of a CCA’s decision to authorize a rehearing and resolves this case on the absence of evidence that the Air Force court abused its discretion. But while the Government loses the battle, I think it wins the war.

Read more »

CAAF decided the interlocutory Army case of United States v. Henning, 75 M.J. 187, No. 16-0026/AR (CAAFlog case page) (link to slip op.), on Monday, March 21, 2016. Directly reviewing the military judge’s ruling – without considering the opinion of the Army CCA that reversed the judge – CAAF concludes that the military judge did not abuse his discretion when he excluded DNA evidence. CAAF reverses the CCA’s decision, reinstates the military judge’s ruling, and lifts a stay of the trial proceedings.

Chief Judge Erdmann writes for a unanimous court.

The accused is charged with “waking the alleged victim by touching her breast, then wrongfully penetrating her vagina with his tongue before moving her to the floor and allegedly raping her.” Slip op. at 2. The DNA evidence at issue is from genetic material found in the alleged victim’s underwear that matches a sample from the accused but would also match a sample from approximately 1 in 220 unrelated individuals in the general population.

The DNA analysis was performed by the Kansas City Police Crime Laboratory using a modified version of the Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines. Further, beyond the modified analytical formula, the analysis involved a very small sample of genetic material consisting of “the equivalent to three or four human cells.” Slip op. at 5. According to a defense expert witness, “the slight amount of DNA analyzed was about one-fiftieth the amount recommended for a reliable result.” Slip op. at 4.

The defense challenged the admissibility of the DNA evidence and the military judge concluded that the results were unreliable and suppressed them. However, the Army CCA reversed after concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous. CAAF then stayed the trial proceedings and granted review of a single issue:

Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Chief Judge Erdmann’s opinion for the unanimous court makes two key holdings.

First, despite the wording of the granted issue, Chief Judge Erdmann explains that in an Article 62 appeal CAAF reviews the military judge’s ruling directly, and he notes that “the CCA’s decision and analysis is not relevant to [that] review.” Slip op. at 7 n.13.

Second, considering the record and the military judge’s ruling, Chief Judge Erdmann finds no flaw in either the military judge’s findings of fact or his conclusions of law. Slip op. at 10. However, the court does not go so far as to actually agree with the military judge on the underlying question of reliability:

We do not hold that the KCPCL’s modified formula is unreliable. We only hold it was not an abuse of discretion for the military judge to find the government had not met its burden of showing the formula was reliable in this case.

Slip op. at 11 n.16.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Rapert, 75 M.J. 164, No.15-0476/AR (CAAFlog case page) (link to slip op.), on Friday, March 18, 2016. Sharply divided, the court narrowly holds 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 (“guilty mind”)That requirement saves the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct, and the court affirms the appellant’s conviction and the summary disposition of the Army CCA.

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

The appellant was convicted of numerous offenses at a special court-martial composed of a military judge alone. One of those was communicating a threat against the President of the United States in violation of Article 134, UCMJ. The specification alleged that the appellant:

did, … wrongfully communicate to Keith Kilburn a threat to wit: “When I go back to Missouri for training soon, I am going to pull my robe out and give one order to be carried out to kill that n[****]r. I am not going to serve under that n[****]r and I will ask for this one order to be carried out by me[],” or words to that effect, such communication referring to the President of the United States of America, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

Slip op. at 4 (quoting record) (marks and omission in original). This offense has four elements:

(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

(2) That the communication was made known to that person or to a third person;

(3) That the communication was wrongful; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Slip op. at 4-5 (quoting Manual for Courts-Martial, United States pt. IV, para. 110.b (2012 ed.)).

CAAF granted review of a single issue:

Whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015).

Affirming the conviction, the majority finds that the third element – that the communication was wrongful – is a subjective element that requires that an accused act with a guilty mind, thereby avoiding the criminalization of otherwise innocent conduct that the Supreme Court addressed in Elonis. The majority thus restates the third element of communicating a threat to read:

(3) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose]

Slip op at 10 (marks in original). The majority also finds that the appellant’s speech had a sufficiently direct and palpable effect on the military mission and environment as to render it unprotected by the First Amendment.

The dissenters, however, see wrongfulness as less distinct, with Judge Stucky noting that “the UCMJ and the explanations of Article 134 offenses in the MCM are littered with the term wrongful.” Diss. op. at 6 (marks omitted). They also see “striking problems” with the majority’s definition of wrongful. Diss. op. at 9. The dissenters would instead impute recklessness into the first element, making it:

That the accused [recklessly] communicated certain language expressing a present determination or in-tent to wrongfully injure the person, property, or reputation of another person, presently or in the future.

Diss op. at 11 (marks in original).

Read more »

CAAF decided the certified Navy case of United States v. Pease, 75 M.J. 180, No. 16-0014/NA (CAAFlog case page) (link to slip op.), on Thursday, March 17, 2016. Rejecting both certified issues, CAAF holds that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial). CAAF affirms the decision of the NMCCA that reversed the appllee’s convictions of sexual assault and abusive sexual contact.

Judge Ohlson writes for a unanimous court.

The case involved two female alleged victims who were subordinates of the appellee and who had (separate) sexual encounters with the appellee after drinking significant amounts of alcohol. The appellee was convicted of engaging in sexual activity with the alleged victims when they were incapable of consenting to the conduct due to impairment by an intoxicant and that the appellee knew or reasonably should have known of their impairment. However, the CCA reversed these convictions because it found that the evidence did not support the conclusion that the alleged victims were incapable of consenting, and also because it found that the appellee “reasonably may have believed that they were willing partners in sexual activity.” United States v. Pease, 74 M.J. 763, __, No. 201400165, slip op. at 14 (N-M. Ct. Crim. App. Jul. 14, 2015).

Yet to analyze the evidence the CCA also analyzed the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent. The CCA determined that a person is incapable of consenting when they “lack[] the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make and to communicate a decision about whether they agree[] to the conduct.” Pease, 74 M.J. at 770. This definition, however, was first stated by the CCA and was not provided to the members at trial.

The Judge Advocate General of the Navy then certified two issues to CAAF:

The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?

The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

In a short and tightly written opinion for the unanimous CAAF, Judge Ohlson explains that the CCA was required to determine what the law was before it could fulfill its duty to review the sufficiency of the evidence, and he endorses (with a clarification) the CCA’s definition of the term incapable of consenting.

Read more »

CAAF decided the Army case of United States v. Gifford, 75 M.J. 140, No. 15-0426/AR (CAAFlog case page) (link to slip op.), on Tuesday, March 8, 2016. Rejecting the Army CCA’s published decision that found that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense, CAAF applies the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating the order prohibiting such action. The court remands the case to the Army CCA for a new review consistent with its opinion.

Judge Ohlson writes for a unanimous court.

CAAF specified the issue in this case:

Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three specifications of failure to obey a lawful general order (by providing alcohol to persons under the age of 21) and one specification of aggravated sexual assault, in violation of Articles 92 and 120. The members sentenced the appellant to confinement for 45 days, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The charges involved a party that the 29-year old appellant hosted in his barracks room. Four other soldiers were present, all of whom were allegedly under the age of 21 and all of whom were allegedly provided alcohol by the appellant, charged as four violations of a general order. The military judge entered a finding of not guilty to one of these allegations, and the members convicted the appellant of the remaining three. The Army CCA found the evidence supporting one of those three allegations to be insufficient (because there was no evidence in the record of the soldier’s age), but it affirmed the remaining two orders violation convictions (and the sex offense conviction) and the sentence.

At trial the prosecution, defense, and military judge all agreed that to be guilty of violating the order the appellant must have known that the recipients of the alcohol were under 21, and the members were instructed on this requirement prior to deliberating. On appeal the appellant challenged the sufficiency of the Government’s proof of his knowledge of the age of the recipients. Rather than finding the evidence sufficient to prove the appellant’s knowledge (for the remaining two offenses), however, the CCA concluded that knowledge wasn’t an element, reasoning that:

[A] provision in a military general order which regulates the distribution of alcohol to underage recipients is analogous to a “public welfare offense.” As such, under these circumstances and given the specific language of this particular general order, we conclude the offense of which appellant was convicted did not include a knowledge of age requirement.

United States v. Gifford, 74 M.J. 580, __, slip op. at 4-5 (A. Ct. Crim. App. 2015) (citation omitted).

Judge Ohlson’s decision reversing the CCA makes two broad conclusions. First, he explains that the order is not a strict liability offense but instead that it requires the Government prove the appellant’s mens rea with respect to the age of the recipients. Second, he explains that the minimum mental state required to meet the Government’s burden of proof on this issue is recklessness.

Read more »

CAAF decided the Marine Corps case of United States v. Wilder, 75 M.J. 135, No.15-0087/MC (CAAFlog case page) (link to slip op.), on Monday, March 7, 2016. In a short and focused decision, CAAF finds no reason to apply an old, judicially-created speedy trial rule. Instead, the court applies the plain language of Rule for Courts-Martial (R.C.M. 707) to find no speedy trial violation in this case, affirming the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Ryan writes for a unanimous court.

CAAF granted review of a single issue:

Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

The factual basis for the case is detailed in my argument preview, but it fades to the background of CAAF’s decision in which Judge Ryan gives a short dissertation on various speedy trial provisions applicable courts-martial and then makes quick work of the granted issue by holding that the plain language of the R.C.M. controls:

The narrow issue for decision in this case is whether, for purposes of a speedy trial violation alleged under R.C.M. 707, the time is calculated by reference to the specific triggers listed in R.C.M. 707(a) or by reference to some other standard such as the “substantial information” rule. Based on the plain language of R.C.M. 707, we do not hesitate to conclude that when analyzing a speedy trial violation under R.C.M. 707, it is the earliest of the actions listed in R.C.M. 707(a) with respect to a particular charge that starts the speedy trial clock for that charge. R.C.M. 707, promulgated in 1984, was a new and different layer of protection against speedy trial violations, see Kossman, 38 M.J. at 260, and for violations alleged under its rubric, its plain language controls. See United States v. Ruffin, 48 M.J. 211, 213 (C.A.A.F. 1998); United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997).

There was no R.C.M. 707 violation in this case. With respect to the Additional Charges, because Appellant was not confined based on them, see supra note 5, the trigger dates from which to measure an alleged violation of R.C.M. 707 for the Additional Charges in this case are the dates of preferral. At most, 111 days passed between preferral and arraignment on Additional Charges I and II, and nineteen days between preferral and arraignment on Additional Charge III.

Slip op. at 6.

Judge Ryan’s opinion avoids an explicit declaration of whether the substantial information rule was abrogated by the promulgation of R.C.M. 707, but her analysis leaves little room for invocation of the rule in any case. The rule was created in 1974 to address situations where an accused was placed into pretrial confinement on some charges and then additional charges were added; it started the Article 10 speedy trial clock (distinct from the future R.C.M. 707 speedy trial clock) for the additional charges on the date when the Government had substantial information to prefer them (and not on the generally later date of actual preferral). Judge Ryan’s opinion only just alludes to the possibility that substantial information (and not actual preferral of charges) might implicate Article 10 for an accused already in pretrial confinement on other offenses:

“The fact that a prosecution meets the 120-day rule of R.C.M. 707 does not directly ‘or indirectly’ demonstrate that the Government moved to trial with reasonable diligence as required by Article 10.” Mizgala, 61 M.J. at 128. Similarly, the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of R.C.M. 707. See Kossman, 38 M.J. at 261.

Slip op. at 5. So a future case could possibly give CAAF a reason to revisit this old rule. But it plays no role in CAAF’s decision in this case.

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Williams, 75 M.J. 129, No. 15-0140/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 23, 2016. Explaining that larceny in violation of Article 121 requires the theft of something from on with a greater possessory interest, and that larceny involving a debit or credit card is typically a larceny from the financial institution even though the true cardholder may suffer a consequence, the court reverses the decision of the Army CCA and the appellant’s convictions of larceny from two soldiers by unauthorized use of their debit cards.

Judge Ryan writes for a unanimous court. Notably, CAAF did not hear oral argument in this case.

CAAF granted review to determine:

Whether Appellant committed larcenies of the property of two soldiers by using their debit card information without authority. See United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010).

The appellant used the debit cards of two fellow soldiers to make various purchases, and he was charged with two specifications of larceny. Each specification alleged that he “did . . . steal money, of a value of more than $500.00, the property of [another soldier]).” Slip op. at 3-4. At trial the appellant moved for a finding of not guilty under R.C.M. 917, asserting that the soldiers were not the victims of the larcenies. The military judge denied the motion.

The Army CCA affirmed the convictions reasoning that the other soldiers were the:

actual victims in this case. Appellant caused the movement of [PFC Irvine’s and SPC Aldrich’s] money from their control, intending to permanently deprive them and actually depriving them of its use and benefit.” 2014 CCA LEXIS 665, at *13, 2014 WL 7228945, at *5 (citing United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014)).

Slip op. at 4-5. Readers may recall a similar analysis by the Army CCA in United States v. Endsley, 73 M.J. 909 (A. Ct. Crim. App. Oct. 17, 2014), which I analyzed here and concluded was erroneous. CAAF summarily reversed the CCA’s decision in Endsley soon after (discussed here).

Now, reversing the Army CCA and the convictions, Judge Ryan explains:

While it is true that the credit or debit cardholder may also suffer a consequence — such as a bank fee or loss of access to funds in an account — the defendant nonetheless did not obtain money or goods from the cardholder.

Further:

The instant case is not an unusual case — there were no agency relationships, no joint accounts, and no contracts. Our unfortunate choice of language in Cimball Sharpton does not change the law, and we urge the Government to cleave to the rule set forth in the MCM in the “usual case.” See MCM pt. IV, para. 46.c.(1)(h)(vi). This is such a case: Appellant’s actions constituted a garden-variety larceny by unauthorized use of debit card information, and the usual rule — that the person who was stolen from, or, in the case of computergeeks.com, from whom larceny was attempted, was the merchant from whom the goods were obtained or the bank from whom money was obtained — applies. The account holders here did not own either the goods or the bank funds available to satisfy the debit card purchases.

While it is both intuitively and objectively true that PFC Irvine and SPC Aldrich were “victims” and “suffered the financial loss[es],” see Cimball Sharpton, 73 M.J. at 299, 301–02, because of Appellant, he neither took nor obtained nor withheld anything from them. Though he was the but-for cause of their financial problems, that does not constitute larceny from them. If a defendant did not steal from the person the government names in the larceny specification, the conviction is legally insufficient. See Lubasky, 68 M.J. at 263, 265.

Slip op. at 10-11.

CAAF decided the Marine Corps case of United States v. Hoffmann, 75 M.J. 120, No.15-0361/MC (CAAFlog case page) (link to slip op.), on February 18, 2016. The court finds that appellant validly withdrew his consent to seizure of his property prior to the Government meaningfully interfering with it. Further, the court rejects an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search. The court reverses the appellant’s convictions and the published decision of the Navy-Marine Corps CCA.

Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

I. The search and seizure of the personal items of an individual where the search was initially granted by written consent, but later revoked before the seizure of items, violated the Fourth Amendment of the Constitution.

II. The appellant was charged with crimes involving child enticement. The NMCCA found a search for a separate crime, child pornography, was suppported by probable cause based solely on the child enticement allegations. In doing so, the NMCCA relied on a minority opinion in federal case law and applied it incorrectly. This court should reverse.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and child enticement, in violation of Articles 80, 120, and 134. He was also convicted of attempted abusive sexual contact with a child, but that charge was dismissed as an unreasonable multiplication of charges.

The appellant was charged with attempting to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. Following one of those alleged incidents the appellant was apprehended by military criminal investigators and the appellant consented to a search of his barracks room. However, once the investigating agent began searching the appellant’s desk, the appellant revoked his consent. Nevertheless, the agent seized several items from the room, including the appellant’s laptop. Months later a different agent obtained a search authorization to examine the computer for evidence of child pornography, leading to the discovery of contraband and the appellant’s conviction for possession of child pornography. The search authorization was granted based on a lengthy discussion between the commander and a Naval Criminal Investigative Service Special Agent, and the Agent’s affidavit, in which the agent claimed that from her “training and experience [] there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” Slip op. at 3 (quoting affidavit).

At trial the defense moved to suppress the fruits of the search but the military judge denied the motion. For the seizure, the military judge found that the seizure was completed prior to the withdrawal of consent and that the agent would have obtained an authorization in the absence of consent (supporting inevitable discovery). The NMCCA affirmed on the basis of inevitable discovery. For the existence of probable cause, the military judge agreed that there is an intuitive relationship between an enticement offense and the possession of child pornography. The NMCCA affirmed this reasoning as well, considering the split opinions of numerous federal circuits and concluding that:

our common sense tells us that the Eighth Circuit’s analysis is correct: an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities.

United States v. Hoffman, 74 M.J. 542, __, slip op. at 13 (N-M. Ct. Crim. App. 2014).

Judge Stucky’s opinion is a wholesale rejection of the Special Agent’s assertion of probable cause, the commander’s decision authorizing the search, the NMCCA’s opinion, and the Government’s arguments.

Further, the court finds that the erroneous admission of the child pornography contributed to the convictions of the other offenses because of the trial counsel’s closing argument “that all of the offenses, including the wrongful possession of child pornography, were manifestations of Appellant’s character: that of a predator, sexually attracted to young boys.” Slip op. at 13. Accordingly, all of the findings of guilty are set aside.

Read more »

CAAF decided the Marine Corps case of United States v. Captain, 75 M.J. 99, No. 15-0172/MC (CAAFlog case page) (link to slip op.), on Thursday, February 4, 2016. The court finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

Chief Judge Erdmann writes for a unanimous court.

CAAF specified two issues for review:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s defense counsel withheld evidence of the appellant’s good military character and conceded that a punitive discharge would be an appropriate sentence. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge. When taking action on the results of the court-martial, the convening authority disapproved the fine and then wrote:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Slip op. at 9. The convening authority’s action did not explicitly approve the adjudged discharge, but it included a statement that “the punitive discharge will be executed, after final judgment.” Slip op. at 9.

On appeal, the appellant asserted that he suffered ineffective assistance of counsel and that the convening authority’s action did not approve the punitive discharge, prohibiting its execution.

CAAF unanimously rejects both of these claims. For the ineffective assistance of counsel claim, Chief Judge Erdmann does not specifically address whether the appellant’s counsel was deficient, but rather finds that the appellant was not prejudiced because the record reflects that the military judge considered his good military character and that the appellant agreed to concede that a punitive discharge was appropriate. For the convening authority’s action, Chief Judge Erdmann finds it ambiguous because of the lack of explicit approval coupled with the reference to future execution. Because the action is ambiguous, CAAF remands for a new action.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Busch, 75 M.J. 87, No.15-0477/AF (CAAFlog case page), on Friday, January 29, 2016. The court unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.

Chief Judge Erdmann writes for the court, joined by Judge Ohlson and Judge Diaz (of the Fourth Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ryan.

CAAF granted review of a single issue:

At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

The appellant pleaded guilty to multiple offenses, including one specification of sexual abuse of a child in violation of Article 120b(c) (2012) for exposing his genitals and masturbating while the child watched via Skype. The appellant’s misconduct occurred in early 2013; after the 2012 statute’s effective date but before President Obama prescribed maximum punishments for the new offense in Executive Order 13643. The President’s failure to prescribe a maximum punishment forced the military judge to determine the maximum punishment for the appellant’s violation of Article 120b(c) by resorting to Rule for Courts-Martial 1003(c)(1)(B), which requires comparing the charged offense to other offenses listed in the Manual and in the United States Code. If a different offense listed in Part IV of the Manual is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(i) permits using the maximum punishment for that closely related offense. However, if no listed offense is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(ii) requires looking to offenses in the United States Code and the custom of the service.

Applying R.C.M. 1003(c)(1)(B)(i), the military judge concluded that the appellant’s offense of sexual abuse of a child was closely related to the offense of indecent liberty with a child in violation of Article 120(j) (2006), for which the maximum authorized punishment includes confinement for 15 years. The defense, however, argued that the offense of indecent exposure in violation of Article 120(n) (2006), with it’s one-year maximum authorized term of confinement, was more closely related. Despite this objection, the appellant still pleaded guilty. Including the computed 15-year maximum, the appellant faced a total maximum authorized confinement of 22 years and one month, and the military judge sentenced him to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge.

In determining that indecent liberty with a child in violation of Article 120(j) (2006) was closely related to the appellant’s offense of sexual abuse of a child in violation of Article 120b(c) (2012), the military judge made reference to Executive Order 13643. That reference prompted the appellant’s ex post facto claim, as he asserted that the military judge wrongly applied the executive order issued after his commission of the offense. CAAF unanimously rejects this claim.

However, the majority finds that the military judge was wrong to use R.C.M. 1003(c)(1)(B)(i), but finds that application of R.C.M. 1003(c)(1)(B)(ii) reaches the same result. The dissent, however, highlights a significant weakness in the majority’s analysis.

Read more »

CAAF decided the Marine Corps case of United States v. Riggins, 75 M.J. 78, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

Judge Ohlson writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

The case involves the appellant’s sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.

During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.

The military judge made special findings when he convicted the appellant of the lesser offenses, explaining that:

he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”

United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:

One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).

United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).

Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.

Read more »

CAAF decided the Navy case of United States v. Bess, 75 M.J. 70, No. 15-0372/NA (CAAFlog case page) (link to slip op.), on Wednesday, January 6, 2016. The court finds that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence. The court reverses the appellant’s convictions of attempting to commit indecent acts and committing indecent acts, and the decision of the Navy-Marine Corps CCA, and authorizes a rehearing.

Judge Stucky writes for a unanimous court.

CAAF specified the following issue for review in this case:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the alleged indecent acts involved instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. However, the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial.

After the close of evidence and during deliberations the members asked the military judge for additional evidence including muster reports (attendance records) that could be used to determine whether the appellant was the x-ray technician on duty at the time of each alleged indecent act. Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative. Considering the members’ request, the military judge conducted a hearing outside the presence of the members, heard testimony about the muster reports, and concluded that they were admissible as business records. However, the military judge denied a defense request to examine the witnesses before the members or to give additional closing argument, and instead “handed the reports to the panel with no explanation, stating only that they had ‘been admitted into evidence.'” Slip op. at 3. Soon afterward the members returned with their findings.

Judge Stucky finds no fault with the judge’s ruling admitting the muster reports. However, he concludes that “giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process.” Slip op. at 7.

Read more »

CAAF issued its first decision of the term, in the Air Force case of United States v. LaBella, 75 M.J. 52, No.15-0413/AF (CAAFlog case page) (link to slip op.), on Friday, December 11, 2015. In a short opinion the court holds that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

Judge Stucky writes for a unanimous court.

CAAF reviewed the following specified issue in this case:

Whether appellant’s petition for grant of review should be dismissed for lack of jurisdiction when the court of criminal appeals entertained an untimely filed motion for reconsideration for “good cause,” but denied the motion on other grounds, and appellant filed a petition for grant of review with this court under Article 67, UCMJ, more than 60 days after the original decision of the court of criminal appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

In 2010, the appellant was tried by a general court-martial composed of officer members. He was convicted, contrary to his pleas of not guilty, of one specification of wrongful and knowing possession of visual depictions of minors engaging in sexually explicit conduct and one specification of wrongful and knowing possession of “what appear to be” minors engaging in sexually explicit conduct, in violation of Article 134. The members sentenced him confinement for six months, forfeiture $447.00 pay per month for 3 months, reduction to E-1, and a dishonorable discharge. The convening authority reduced the discharge to a bad-conduct discharge.

The Air Force Court of Criminal Appeals conducted two reviews in the case. In the first review, completed in 2013, the AFCCA rejected the appellant’s assertions that the military judge improperly admitted evidence of images that did not constitute child pornography, and the CCA affirmed the findings and sentence. CAAF then granted review and summarily remanded the case (discussed here) for consideration in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page). The AFCCA then completed its second review of the case in July 2014, applying its own decision in United States v. Piolunek, 72 M.J. 830, (A.F. Ct. Crim. App. Oct 21, 2013), aff’dUnited States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), to conclude that any error was harmless beyond a reasonable doubt.

However, after the AFCCA issued its July 2014 decision, the appellant’s detailed military appellate defense counsel did not appeal that decision to CAAF within the 60 day time period for doing so, nor did his counsel seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after some apparent changes in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014.

The CCA granted that petition and reconsidered the case, however it denied the appellant any relief. The appellant then petitioned CAAF for review, but the Government opposed the petition on jurisdictional grounds. CAAF then specified the jurisdictional question for review.

In today’s decision, Judge Stucky concludes that the AFCCA did not have jurisdiction to grant the out-of-time petition for reconsideration. It is the second time in four months that Judge Stucky has authored a decision of the court that finds that the AFCCA acted outside its jurisdiction (the other being United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page)).

Read more »