CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. Ahern, __ M.J. __, 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, __ M.J. __, 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, __ M.J. __, 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, __ M.J. __, 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, __ M.J. __, 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, __ M.J. __, 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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CAAF decided the Air Force case of United States v. Price, __ M.J. __, No. 16-0611/AF (CAAFlog case page) (link to slip op.), on Friday, March 3, 2017. In a short opinion the court concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry. CAAF affirms the findings and sentence and the decision of the Air Force CCA

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

In order to ensure that a plea of guilty at a court-martial is made voluntarily – and in light of the fact that military service involves all manner of coercion – a military judge must “conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty.” Slip op. at 4 (quoting United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003)) (additional citation omitted) (emphasis in original).

When Price pleaded guilty, however, he offered only a “limited, generic recitation” of the factual basis for his plea (the things that made him guilty). Slip op. at 2. The military judge pressed for additional details over defense objection, eventually eliciting aggravating facts that were not perhaps totally necessary to a sufficient guilty plea.

But CAAF finds no error.

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CAAF decided the Marine Corps case of United States v. Rosario, 76 M.J. 114, No. 16-0424/MC (CAAFlog case page) (link to slip op.), on Wednesday, February 22, 2017. The court affirms the Navy-Marine Corps CCA’s consideration of facts supporting sexual assault allegations that resulted in acquittals in the court’s review of a conviction of sexual harassment, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during a CCA’s review of convictions.

Judge Sparks writes for a unanimous court.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment on divers occasions in violation of Article 92. Rosario was also charged with three unlawful touchings in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to a female subordinate. On appeal Rosario asserted that the evidence was insufficient to sustain a conviction of sexual harassment. The NMCCA rejected this challenge, concluding that the touchings forming the bases of the other charges (of which Rosario was acquitted) were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review of two issues:

I. Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

II. Whether the military judge erred when he instructed the members, “If based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Today’s opinion makes relatively short work of the first issue, and summarily rejects the second in light of the court’s opinion in United States v. McClour, __ M.J. __ (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

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CAAF decided the Army case of United States v. Nieto, 76 M.J. 101, No. 16-0301/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 21, 2017. Considering the validity of a search authorization that was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices, CAAF finds that the authorization lacked probable cause and reverses the appellant’s conditional pleas of guilty and the summary affirmation of the Army CCA.

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

Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses that were discovered after he was accused of using a cell phone to surreptitiously record other soldiers using the toilet at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. After Nieto’s apprehension, an Army Criminal Investigation Division (CID) special agent obtained authorizations to seize and search Nieto’s cell phone and also his laptop. The allegation did not involve the laptop, but the agent sought to include the laptop in the authorization based on his experience that “Soldiers using their cell phones to photograph things . . . back those up to their laptops . . .” Slip op. at 4 (quoting record). A second agent obtained a second authorization with the additional commentary that:

About 1024, 4 Jun 13, [Appellant] admitted to using his cellular telephone to view and record Soldiers utilizing the latrine while at FOB Azi Zullah [sic], Afghanistan. [Appellant] admitted to masturbating to the images on his cellular telephone of Soldiers utilizing the latrine.

It is my [i.e., SA Dunn’s,] experience as a CID Special Agent that persons who would use a portable digital media recorder would also transfer the media from a portable device to a computer station or storage device. Persons who view and record sexual acts often times store and catalog their images and videos on larger storage devices such as a computer or hard drive.

Slip op. at 5 (quoting record) (marks in original). Incriminating evidence was found on the laptop (leading to additional charges) but the cell phone “revealed nothing relevant to CID’s investigation.” Slip op. at 5 (marks omitted).

At trial Nieto unsuccessfully challenged the search authorizations as lacking probable cause to search the laptop, and his conditional pleas preserved his right to continue that challenge on appeal. The Army CCA summarily affirmed. CAAF then granted review of one issue:

Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer

Today’s opinion finds no probable cause to seize the laptop based on “an insufficient nexus between Appellant’s cell phone and his laptop that can be inferred based on the particular facts presented to the military magistrate.” Slip op at 10 n.4. This conclusion echoes the conclusion in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), where a unanimous CAAF rejected the adequacy of an asserted intuitive relationship between a child enticement offense and the possession of child pornography as a basis for probable cause. But Judge Stucky, who was the author of CAAF’s opinion in Hoffman, dissents from today’s opinion and decries it as “a constellation of shortcomings with regard to the law of probable cause, the facts of this case, and the application of law to fact.” Diss. op. at 10.

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CAAF decided the Air Force case of United States v. Dockery, 76 M.J. 91 No. 16-0296/AF (CAAFlog case page) (link to slip op.) on Tuesday, February 14, 2017. The court finds that the military judge committed error when he granted the prosecution’s challenge of a member, but that the error did not prejudice the appellant’s rights. CAAF reverses the decision of the Air Force CCA in part, but it affirms the findings and sentence.

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

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In an order issued today (available here) in the Air Force case of United States v. Ortiz, No. 16-0671 (CAAFlog case page), CAAF affirms the decision of the three-judge panel of the Air Force CCA that included a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review:

On consideration of the briefs of the parties, the briefs of amici curiae, and oral argument, it is, by the Court, this 9th day of February, 2017,

ORDERED:

That the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed. The opinion of the Court will be issued on a future date. C.A.A.F. R. 43(b). A petition for reconsideration may be filed no later than days after the date of the issuance of said opinion.

CAAF decided the Air Force case of United States v. Bowen, 76 M.J. 83, No. 16-0229/AF (CAAFlog case page) (link to slip op.) on Wednesday, February 8, 2017.  Concluding that the military judge failed to properly consider the condition of the appellant’s wife when admitting her non-verbal response as an excited utterance, CAAF reverses the findings and the decision of the Air Force CCA, authorizing a rehearing.

Chief Judge Erdmann writes for a unanimous court.

Airman First Class (E-3) Bowen was convicted contrary to his pleas of not guilty, by a general court martial composed of officer members, of aggravated assault of his wife and also of assault of another airman, both in violation of Article 128. He was sentenced to confinement for one year and reduction to E-1.

The evidence admitted at trial included testimony by Air Force security personnel who entered Bowen’s house and found his wife unconscious and badly injured in the bathtub. An investigator testified – over defense objection – that the wife was partially conscious when she was asked if “her husband ‘did this’ to her,” and that in response the wife nodded her head indicating a positive response. Slip op. at 4. The Air Force CCA found no error.

CAAF specified an issue for review questioning the military judge’s ruling that permitted this testimony:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. SeeM.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

In yesterday’s decision, CAAF determines that the military judge did abuse his discretion in admitting the head nod because he failed to properly consider the wife’s mental capacity. The court does not reach the separate question of whether the prejudicial effect of the head nod outweighed its probative value. Considering the impact the evidence had in the case – including that the defense asserted that the other airman (the other alleged victim) was the true source of the wife’s injuries – CAAF concludes that the erroneous admission affected both assault convictions.

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CAAF decided the Coast Guard case of Randolph v. HV and United States, 76 M.J. 27, No. 16-0678/CG (CAAFlog case page) (link to slip op.), involving a writ-appeal filed by an accused, on Wednesday, February 2, 2017. Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review. Accordingly, a three-judge majority dismisses the writ-appeal petition.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Judge Ryan also writes a separate concurring opinion. Chief Judge Erdmann dissents, joined by Judge Sparks who also files a separate dissenting opinion.

The writ-appeal challenged the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on an Article 6b petition for mandamus filed by HV, who is the alleged victim in a case against the petitioner, Coast Guard Damage Controlman Second Class (E-5) Randolph. Article 6b – our #6 Military Justice Story of 2016 – is known as the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771. Among those provisions is one allowing an alleged victim to appeal a trial-stage ruling that affects the victim’s rights, and HV used that provision to win additional protections from the CCA for her mental health records.

Randolph appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential communications” protected by MRE 513 includes records of diagnosis.

Implicit in the specified issue was the fact that last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found that it has no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim. In Randolph, CAAF wondered if an accused is similarly deprived of the opportunity for review.

Judge Stucky answer this question in the affirmative, concluding that:

the same analysis applies to Appellant’s petition. Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a Court of Criminal Appeals. There is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to this Court. Accordingly, we lack jurisdiction to consider Appellant’s petition.

Slip op. at 4 (citations omitted). A footnote adds this bit of rhetoric:

it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.

Slip op. at 6 n.2.

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CAAF decided the Army case of United States v. Sewell, 76 M.J. 14, No. 16-0360/AR (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. In an opinion that names the trial counsel but avoids direct criticism of his performance, a majority of CAAF finds that the evidence supporting the convictions is sufficient to overwhelm any impropriety in the trial counsel’s closing argument. But a pointed dissent finds serious errors and casts the counsel as a bad role model. CAAF affirms the findings and the sentence and the decision of the Army CCA.

Judge Ryan writes for the court, joined by all but Judge Ohlson who dissents in part.

Sergeant Sewell was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of six specifications of indecent conduct and one specification of assault with intent to commit rape. He was sentenced to confinement for one year, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA granted one month of confinement credit for dilatory post-trial processing but otherwise approved the findings and sentence without further discussion. CAAF then granted review of an issue personally asserted by Sewell, alleging prosecutorial misconduct:

Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.

The improper argument involved assertions about Sewell’s “criminal disposition or propensity” to which there was a sustained objection and a curative instruction, slip op. at 4-5, other arguments to which there were overruled objections that the majority do not fault, slip op. at 5 n.2, and alleged “improper vouching, references to facts not in evidence, and statements that purportedly inflamed the passions of the panel,” slip op. at 6, to which there was no objection at trial.

In her opinion for the court Judge Ryan finds that “some of trial counsel’s statements during argument were improper,” slip op. at 2, however she concludes that those improprieties were harmless in light of the evidence supporting the convictions:

Even assuming that trial counsel’s misconduct was severe and the military judge’s instructions were insufficient, we find the third Fletcher factor [the weight of the evidence supporting the convictions] dispositive.

Slip op. at 8. But Judge Ryan also identifies the trial counsel by name:

Appellant argues that the trial counsel, Lt. Col. Matthew McDonald, made improper arguments that prejudiced his right to a fair trial.

Slip op. at 4. This is generally considered to be a bad thing for the named attorney. It is also (by my recollection) the first time CAAF has named a trial counsel in connection with an allegation of impropriety since United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), our #4 Military Justice Story of 2013 Correction: United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page).

Judge Ohlson, however, is even more blunt.

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CAAF decided the Navy case of United States v. Pabelona, 76 M.J. 9, No. 16-0214/NA (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. Reviewing the trial counsel’s closing argument for plain error (because the defense did not object during trial), CAAF finds that even if parts of the argument were improper there is no evidence of prejudice because of the weight of the evidence supporting the convictions. Accordingly CAAF affirms the findings and sentence and the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Chief Hospital Corpsman (E-7) Pabelona was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of larceny and signing a false official statement. The convictions related to a so-called sham marriage (a marriage for the purpose of receiving military dependent benefits). Pabelona was sentenced to confinement for 60 days, restriction for 60 days, reduction to E-5, total forfeitures, and a fine of $60,000 (with a contingent 16 months of additional confinement as an enforcement provision). After considering numerous problems with the post-trial processing of Pabelona’s case, the NMCCA affirmed the findings and only so much of the sentence as provides for confinement for 60 days, reduction to E-5, total forfeitures, and a fine in the amount of $29,529.64.

CAAF granted review of two issues:

I. Prosecutors must act within the bounds of propriety. Here, in front of members, the prosecutor expressed his opinion of appellant including, “I think he’s an idiot,” opined on defense-friendly evidence, characterized appellant’s statements as “ridiculous,” vouched for government-friendly evidence, diagnosed appellant as schizophrenic, asked members to disregard defense arguments, and told members that appellant “sleeps in a bed of lies.” Was this plain error?

II. Whether the military judge erred when he instructed the members, “if based on your consideration of the evidence, you are firmly convinced the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Pabelona’s defense counsel did not object to any of these asserted errors, and so CAAF reviews for plain error. “The standard for plain error review requires that: ‘(1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.’ The burden lies with [Pabelona] to establish plain error.” Slip op. at 3 (quoting United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

Applying the plain error standard, and without substantive analysis of the comments at issue, Judge Sparks finds that even assuming there was error there is no evidence of prejudice:

[W]e find the weight of the evidence supporting the conviction strong enough to establish lack of prejudice in and of itself. The Government presented ample evidence at trial to support the members’ findings. . .

. . . There is no evidence that the members failed to reach their decisions based on the evidence alone. There is nothing to indicate material prejudice to Appellant’s substantial rights.

Slip op. at 4-5. The court similarly – and summarily – rejects the second issue, with a citation to last week’s decision in United States v. McClour, __ M.J. __ (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

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