CAAFlog » CAAF Opinions

CAAF decided the Coast Guard case of  United States v. Leahr, 14-0265/CG, __ M.J. __ (CAAFlog case page) (link to slip op.), on Friday, July 25, 2014. A divided court finds that Appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court finds no improper reason behind the dismissal. The court also rejects – in a brief footnote – a challenge to the impartiality of the military judge. CAAF affirms Appellant’s convictions and the decision of the Coast Guard CCA.

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

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as allegations of burglary and kidnapping. The members sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Appellant’s brief to CAAF explained that the charges involved two alleged victims. Most of the charges alleged offenses against Appellant’s fiancee (BM), but one of the assault specifications involved another Coast Guard member (LS). The allegation involving LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior (and Appellant was ultimately acquitted of that offense). But,

 Based on this new allegation, on September 1, 2011, the convening authority signed a document titled, “Withdrawal and Dismissal of Charges Against Appellant],” which stated:

The charges and specifications referred to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice. . . . In anticipation of the possibility that this new allegation will cause [Appellant] to become the subject of a newly preferred additional charge which would warrant referral to a court-martial, I desire that the accused to be [sic] tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.

Slip op. at 4. Five days later the original charges were re-preferred, with two changes. The first change was an addition of terminal element language to the Article 134 specifications (it was omitted from the first charge sheet). The second change was the addition of a specification of assault consummated by a battery involving LS. A second Article 32 investigation was conducted, but it only considered the new specification. The charges were then referred to another general court-martial, and Appellant moved to dismiss for improper referral and violation of his regulatory speedy trial right under Rule for Courts-Martial 707. “The military judge denied both motions finding, among other things, that the withdrawal and dismissal of the original charges was valid and for a proper reason.” Slip op. at 5-6. The CCA affirmed, “relying on the fact that the convening authority dismissed the original charges,” and “that the reason for withdrawal and re-referral was greater judicial and cost efficiencies.” Slip op. at 6 (marks and citations omitted).

CAAF then granted review of three issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Judge Ryan frames the first (and main) issue as a question of fact:

In this case, if the convening authority dismissed the original charges on September 1, 2011, the dismissal reset the speedy trial clock and no violation under R.C.M. 707 occurred. If, however, his action amounted to a withdrawal only, the speedy trial clock was not reset and the 190-day period between the initial preferral on March 1, 2011, and arraignment on all charges on November 8, 2011, violated R.C.M. 707.

Slip op. at 8 (citations omitted). The majority concludes that “on balance . . . the convening authority intended to, and did, dismiss the original charges.” Id.

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CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Monday, July 21, 2014. The court abrogates the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applies that test to the facts of the case and determines that the military judge’s ruling admitting Appellant’s confession was not clearly erroneous, affirming Appellant’s conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

While deployed to Iraq in 2011, Appellant (a military policeman with the rank of Specialist (E-4)) participated in a robbery of an Iraqi businessman of over $380,000 in U.S. currency. Before the robbery, Appellant and his roommate (another military policeman named Carrasquillo whose conviction is also under review by CAAF (grant discussed here)) attempted to recruit then-Private First Class (E-3) Ellis into the conspiracy. Ellis was an augmentee military policeman who wore a military policeman’s uniform but had little formal training. Ellis thought the idea a joke, but when he later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31(b), UCMJ.

The questioning included the following exchange:

SPC Ellis: “Don’t play games with me . . . . Why’d you do it?”
Appellant: “What are you talking about?”
SPC Ellis: “Jones, don’t f’n play games with me.”
Appellant: “All right. We did it.”
SPC Ellis: “Who is we?”
Appellant: [No response]
SPC Ellis: “Where’s your roommate, Carrasquillo?”
Appellant: “I guess, he’s in the room.”

Slip op. at 5. Ellis reported what Appellant told him to his section leader. Appellant was eventually charged with the robbery. At trial he moved to suppress his statements to Ellis due to the fact that Ellis did not warn him about his right to remain silent in accordance with Article 31(b). “The Government responded in opposition to the motion and argued that SPC Ellis was not required to give Article 31(b), UCMJ, warnings because (1) SPC Ellis was not acting in an official capacity, and (2) SPC Ellis did not coerce Appellant.” Slip op. at 6. The military judge agreed with the Government, Ellis testified at trial, and Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of conspiracy to commit burglary and burglary, in violation of Articles 81 and 129. Appellant was sentenced to confinement for two years and a bad-conduct discharge.

The Army CCA summarily affirmed Appellant’s convictions but CAAF granted review to determine:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Judge Ryan answers that question in the negative, finding that “the military judge did not abuse his discretion in admitting Appellant’s statement, as [Ellis] was not acting in an official law enforcement or disciplinary capacity when he questioned Appellant.” Slip op. at 2-3.

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CAAF decided the Army case of United States v. Treat, No. 14-0280/AR, __ M.J. __ (CAAFlog case page) (link to slip op.) on Wednesday, July 16, 2014. A plurality of the court holds that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance is not fatal because it did not prejudice Appellant. The court therefore affirms the published decision of the Army CCA that affirmed Appellant’s conviction for missing movement (despite the fact that the CCA found no material variance).

Judge Ohlson writes for the court, joined by Judge Erdmann (and creating what I believe is the first plurality opinion of the court since Forney (discussed here) was decided in 2009). Chief Judge Baker writes separately, concurring in the result but finding that the variance was not material. Judge Stucky dissents across the board, finding that Appellant waived this issue, and further finding that even if Appellant didn’t waive the issue then the variance was both material and fatal and the conviction should be reversed. Judge Ryan also dissents, joining Judge Stucky’s dissent but writing separately to express skepticism about whether the court should find waiver in this case.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight left. His command didn’t believe his story, and he was soon charged. He was convicted contrary to his pleas of not guilty, by a special court-martial composed of a military judge alone, of missing movement and making a false official statement in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

CAAF granted review of a single issue involving the missing movement conviction:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

The Government charged Appellant as follows:

In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

Slip op. at 3 (emphasis added). “However, at trial the Government’s witnesses could not recall the flight number of the aircraft on which Appellant’s unit deployed. After hearing all the evidence, the military judge convicted Appellant of the missing movement charge, but only after excepting the words ‘Flight TA4B702,’ and substituting therefor the words ‘the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.’” Slip op. at 3.

The Defense did not move for a finding of not guilty based on the Government’s failure to prove the flight number, nor did the Defense object at the time the military judge made the findings (a fact that Judge Ohlson addresses in a last-page footnote as requiring plain error review). However, the Defense did raise the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge, and it is a potential issue when findings are made by exceptions and substitutions. Exceptions and substitutions are changes to a specification permitted by Rule for Courts-Martial 918; an accused may be found guilty of a specification while not guilty of certain language within the specification (exceptions) and guilty of other language added to the specification (substitutions).

In this case, the Defense strategy was based on Appellant’s asserted kidnapping, and “the defense’s theme throughout the trial was ‘the truth is stranger than fiction.’” Slip op. at 8. But “in order ‘to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” Slip op. at 12 (emphasis in original) (quoting United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)). On automatic review the Army CCA found no material variance in the findings, issuing a published decision (72 M.J. 845). I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and concluded that there was a material variance in the findings and that the CCA’s finding of no variance was mistaken. But I felt that Appellant’s kidnapping defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

Judge Ohlson’s plurality opinion agrees with my conclusion that there was a material but non-fatal variance.

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CAAF decided the Air Force case of United States v. Elespuru, No. 14-0012/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 15, 2014. The court finds that Appellant knowingly waived his multiplicity claim. Nevertheless, the court dismisses one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

Judge Ryan writes for a practically-unanimous court. Chief Judge Baker concurs in the result but dissents from the majority’s finding of waiver.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of abusive sexual contact upon a substantially incapacitated person, wrongful sexual contact, and assault consummated by a battery, in violation of Articles 120 (2006)  and 128. He was sentenced to reduction to E-1, confinement for 36 months, and a dishonorable discharge.

CAAF granted review to determine:

Whether Specifications 2 [abusive sexual contact] and 3 [wrongful sexual contact] of Charge I are multiplicious.

Slip op. at 2 (modification in original). Appellant’s victim fell asleep after a night of drinking. While she was sleeping, Appellant repeatedly touched her body. She awoke each time, told him to stop, and then fell back asleep. This cycle repeated four times.

The Government charged Appellant with abusive sexual contact (Article 120(g) (2006)) (an offense that involves engaging in sexual contact with someone substantially incapable of declining participation in, or communicating unwillingness to engage in, the sexual contact) and wrongful sexual contact (Article 120(m) (2006)) (an offense that involves unlawful sexual contact with another person without their permission). At trial, Appellant “submitted a Motion for Unreasonable Multiplication of Charges for Findings or Finding Charges Multiplicious for Sentencing.” Slip op. at 4. The Government responded “that the offenses were charged not as lesser included offenses, but in the alternative for exigencies of proof,” and that if Appellant were convicted of both offenses then the court “should merge the offenses for calculation of maximum punishment.” Slip op. at 4. Discussing the motion, Appellant’s defense counsel “conceded that the elements test for lesser included offenses was not met and that Appellant’s charge of wrongful sexual contact was not a lesser included offense of abusive sexual contact.” Slip op at 4.

Appellant was then convicted of both offenses and they were merged for sentencing. This merger meant that Appellant was sentenced only for the greater offense (abusive sexual contact). But on appeal Appellant asserted that the lesser offense should be dismissed because it is a lesser included offense of the greater offense. This assertion was directly contrary to the position advanced at trial.

And yet, CAAF grants Appellant the requested relief, dismissing the wrongful sexual contact offense. The court does so because “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof.” Slip op. at 9. And it does so unanimously. However, CAAF also finds that Appellant “knowingly waived his right to assert a multiplicity claim on appeal.” Slip op. at 8.

Chief Judge Baker dissents from the waiver decision, asserting that “it is not clear why the majority is reaching so hard to find waiver in a case in which the Court’s unanimous decision renders the issue moot.” Diss. op. at 3. But the Chief Judge’s quest for clarity is likely rhetorical because had the court accepted Appellant’s argument against waiver, it would have marked a major shift in the court’s precedent for claims of ineffective assistance of counsel.

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CAAF decided the Army case of United States v. Flesher, No. 13-0602/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 8, 2014. A fractured court finds that the record does not provide an adequate basis to demonstrate that the military judge acted within the bounds of his discretion when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker dissents, finding neither error nor prejudice. Judge Ryan also dissents, finding greater error than the majority, but she joins Chief Judge Baker in finding no prejudice.

The case presents a Daubert challenge to the Government’s presentation of a former SARC as an expert witness at trial and her testimony that in her experience sexual assault victims almost never fight back against their attacker, almost never scream or call for help, and generally first report the attack to a friend or family member and not to law enforcement. But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault. CAAF granted review of the following issue:

Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the military rules of evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

The appellant entered mixed pleas at a general court-martial in 2011. He pleaded guilty to, and was convicted of, two specifications of furnishing alcohol to a minor as an assimilated offense under Article 134. He pleaded not guilty to one specification of aggravated sexual assault in violation of Article 120 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted the appellant of the sexual assault, acquitted him of the burglary, and sentenced him to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The facts of the case involve a sexual encounter between the appellant and a 16 year-old girl, in her bedroom at her parent’s house, after she consumed alcohol at the appellant’s home with the appellant and the girl’s 15 year-old brother. The sexual encounter occurred while the girl’s brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Both the girl and the appellant testified at trial about the encounter: The appellant asserted a consensual encounter while the girl asserted the opposite. All agreed that the girl didn’t fight back against the appellant and that she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

At trial the military judge allowed the Government to call the former SARC (whose name was Ms. Falk) as an expert witness over the objection of the Defense. But the military judge did a poor job of addressing the Defense objections relating to Ms. Falk, and CAAF’s resolution of the case turns on this failure. Judge Ohlson finds that an early email from the judge “did not address the question of the admissibility of Ms. Falk’s testimony; it merely assumed it.” Slip op. at 6. He notes that “the military judge did not approach his evidentiary rulings in a methodical manner.” Slip op. at 17. And he concludes that:

Here, the military judge delayed ruling on the defense’s request for a continuance and the defense’s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense’s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk’s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing — despite the fact that the defense specifically and repeatedly requested one — or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge’s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.

Slip op. at 20-21 (emphasis added). In the absence of the significant deference normally afforded a trial-stage ruling permitting a witness to testify as an expert, Judge Ohlson and the majority conduct a de novo review of the admissibility of Ms. Falk’s testimony, employing the six-factor test from United States v. Houser, 36 M.J. 392 (C.M.A. 1993), where the court affirmed the admission of the testimony of a Government expert on rape trauma who did not interview the victim.

But this review begins with a clear caveat “affirm[ing] the appropriateness of allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent.” Slip op. 23. And Judge Ohlson repeatedly emphasizes that the court’s decision is based on the unique circumstances presented in this case.

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CAAF decided the Air Force case of United States v. Cimball Sharpton, No. 14-0158/AF, 73 M.J. 299 (CAAFlog case page) (link to slip op.) Friday, June 13, 2014. The court affirms the published opinion of the Air Force CCA that found Appellant’s conviction of larceny from the Air Force, by misusing her Government Purchase Card (GPC) to purchase various items for personal use, to be legally sufficient, and rejects Appellant’s argument that that the victim of the larceny was not the Air Force but was some other party (either the bank or the merchants).

Chief Judge Baker writes for a unanimous court.

Appellant was convicted, contrary to her pleas of not guilty, of multiple offenses including larceny from the United States Air Force by misusing her Government Purchase Card (GPC) to purchase various items for personal use. A GPC is basically a credit card billed directly to the taxpayers. Despite the not guilty pleas, Appellant did not contest the fact of her misuse of the card (she actually tried to enter a conditional plea of guilty). However, on appeal Appellant asserted that the victim of the larceny was not the Air Force, but was some other party (either the bank or the merchants). The Air Force CCA rejected this assertion in a published opinion, deciding that:

[T]he Government appointed the appellant as its representative to obligate Government funds through GPC purchases. US Bank, in turn, issued a GPC in the appellant’s name. The appellant did not steal the card from someone else and pretend to be a different person. Rather, she exceeded the scope of her agreement with the Government by using a card issued in her name to expend credit on unauthorized, personal purchases.

United States v. Cimball Sharpton, 72 M.J. 777, __, slip op. at 4-5 (A.F.Ct.Crim.App. 2013). CAAF then granted review of a single issue:

Whether the Air Force court abused its discretion in finding the evidence legally sufficient to support a conviction for larceny from the Air Force.

Chief Judge Baker’s opinion has the bottom line up front: “In this case, as in United States v. Lubasky, the victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue. 68 M.J. 260, 263-64 (C.A.A.F. 2010).” Slip op. at 2. The entire opinion is only nine pages long, and the most substantive discussion is found in just four paragraphs:

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CAAF decided the Air Force case of United States v. Paul, No. 14-0119/AF, 73 M.J. 274 (CAAFlog case page) (link to slip op.), on May 29, 2014. The court reverses the Air Force CCA’s decision that took judicial notice of the fact that 3,4-methylenedioxymethamphetamine (“Ecstasy”) is a controlled substance in order to affirm Appellant’s conviction for wrongful use of the drug in violation of Article 112a. CAAF concludes that “while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.” Slip op. at 15.

Chief Judge Baker writes for a unanimous court.

Appellant was tried by a special court-martial composed of a military judge alone and convicted, contrary to his pleas of not guilty, of multiple offenses including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”) on divers occasions. But the military judge who convicted Appellant did so despite the fact that the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. Nevertheless, the Air Force CCA affirmed the conviction by taking judicial notice of the fact that ecstasy is a controlled substance, finding it to be indisputable.

CAAF then granted review to determine the propriety of the CCA’s approach, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it took judicial notice of an element of a charge in violation of Garner v. Louisiana, 368 U.S. 157 (1961), and Military Rule of Evidence (MRE) 201(c).

Chief Judge Baker’s opinion begins by providing some context: The Government’s case included a civilian witness who testified that she saw “Appellant using ecstasy in his apartment on two separate occasions during the charged time period.” Slip op. at 3. Additionally, the Government introduced text messages obtained from Appellant’s cell phone that discussed using “e” and “rolling.” A footnote explains: “‘rolls’ and ‘rolling’ are common slang associated with ecstasy use.” Slip op. at 4 n.3. But while the parties focused their arguments to CAAF on the fact that the CCA took judicial notice of the scheduled nature of the substance, Chief Judge Baker’s opinion highlights a more foundational point:

Though the charge sheet stated that Appellant did “wrongfully use 3,4-methylenedioxymethamphetamine, a Schedule I controlled substance, commonly known as Ecstasy,” and in closing argument, the Government used a slide that read, “Accused used 3,4-methylenedioxymethamphetamine, commonly known as Ecstasy, Ex or E,” the Government did not enter anything into evidence indicating that Ecstasy is in fact 3,4-methylenedioxymethamphetamine.

Slip op. at 4 (emphasis added). Chief Judge Baker then explains just how wrong the military judge was in finding Appellant guilty of this offense:

The problem in the present case, as the CCA observed, is that the Government did not offer evidence at trial that Appellant used 3,4-methylenedioxymethamphetamine, that 3,4-methylenedioxymethamphetamine is a controlled substance, or that 3,4-methylenedioxymethamphetamine is commonly referred to as ecstasy. To the contrary, the Government offered legally sufficient evidence that Appellant used “ecstasy.” Ecstasy is neither a named prohibited substance under Article 112a, nor has it been listed on any schedule prescribed by the President. . . . In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.

As a result, no rational trier of fact could have found an essential element of the charged offense beyond a reasonable doubt, namely that Appellant used a Schedule I controlled substance.

Slip op. at 7-8. Chief Judge Baker then turns to “whether the CCA could take judicial notice of a fact necessary to establish an element of the offense that the Government failed to establish at trial.” Slip op. at 8. At the outset, CAAF clearly “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.” Slip op. at 10. In other words, CAAF says yes to appellate judicial notice. In this respect, I disagree with Phil’s post titled “No to appellate judicial notice?”

But there are two issues with what the CCA did in this case:

First, whether characterized as a question of fact or law, M.R.E. 201 in this case would require that the Appellant first have notice and an opportunity to be heard. . . . Second, and related, the CCA took judicial notice of an element of the offense.

Slip op. at 11.

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The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

Discussions about this case were had on CAAFLog with Zach’s, “Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused).”

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists.  “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.”  Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.”  Slip op. at 10.  The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.”  Slip op. at 11.  Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice.  Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams.  Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.

The end.

 

CAAF decided the Army case of United States v. Davis, No. 14-0029/AR, 73 M.J. 268 (CAAFlog case page) (link to slip op.), on Friday, May 23, 2014. The court affirms the findings and the decision of the Army CCA that found that that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt.

Judge Ohlson writes for a unanimous court.

Appellant was charged with assault with a dangerous weapon for pointing an unloaded .40 caliber semiautomatic pistol at a houseguest named Specialist S.S. The Specialist was fighting with his grilfriend, and Appellant became agitated and demanded that S.S. and his girlfriend leave Appellant’s property. Appellant then retrieved the pistol from inside his house and pointed it at S.S. while standing on his own front porch.

Appellant was tried by a general court-martial composed of officer members. The military judge instructed the panel on the affirmative defense of self-defense based on the possibility that Appellant was defending himself against an attack by S.S. The Defense did not object to this instruction, nor did the Defense request an additional instruction on the affirmative defense of defense of property based on the possibility that Appellant was defending his property from a trespassing S.S. The members then convicted Appellant of the lesser included offense of simple assault with an unloaded firearm in violation of Article 128. Appellant also pleaded guilty to two specifications of failure to go to his appointed place of duty, and the members sentenced him to a total of confinement for 90 days, reduction to E-4, and a bad-conduct discharge.

The Army CCA reviewed the case and concluded that the military judge erred in failing to sua sponte instruct the members on the affirmative defense of defense of property, but that the error was harmless beyond a reasonable doubt. CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred in finding that the military judge’s failure to instruct on the affirmative defense of defense of property was harmless beyond a reasonable doubt.

Judge Ohlson begins by noting “that there are two distinct theories of defense of property implicated in this case — defense of property in the context of an imminent threat to the property, and defense of property in the context of preventing a trespass or ejecting a trespasser from the property.” Slip op. at 8-9.

Under the former theory, the accused must have had a reasonable belief that his real or personal property was in immediate danger of trespass or theft; and the accused must have actually believed that the force used was necessary to prevent a trespass or theft of his real or personal property. The accused’s subjective belief that the force was necessary must also be reasonable. In determining the reasonableness of the accused’s subjective belief as to the amount of force necessary, a panel must look at the situation through the eyes of the accused and consider the circumstances known to the accused at the time.

Under the latter theory, the accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave. A person or invitee who refuses to leave after being rightfully asked to do so becomes a trespasser and may not resist if only reasonable force is employed in ejecting him. However, a property owner may not “purposely provoke a disturbance” on his property and then use his ownership of the property as an excuse for an unnecessary assault in ejecting another person. If more force is used than is reasonably necessary to remove a trespasser, this force constitutes assault and battery.

Slip op. at 9-11 (citations omitted).

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CAAF decided the Air Force case of United States v. Frey, No. 14-0005/AF, 73 M.J. 245 (CAAFlog case page) (link to slip op.) on May 19, 2014. The court unanimously finds error in the trial counsel’s sentencing argument to the members to “think what we know, common sense, ways of the world, about child molesters.” Slip op. at 10. But the court splits 4-1 to find the error harmless, affirming the sentence and the decision of the Air Force CCA.

Chief Judge Baker writes for the majority. He is joined by all but Judge Ohlson, who dissents. Judge Ohlson agrees with the majority’s finding of error but concludes that “the toxic nature of the trial counsel’s comments, coupled with the deleterious effect of the military judge’s instructions, poisoned the sentencing hearing beyond redemption.” Diss. op. at 1.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.

At sentencing, trial counsel requested that members impose a sentence of ten years of confinement, dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Defense counsel asked that members impose a sentence of less than ten years, but did not request a specific number, simply asserting that: “The defense would suggest to you that a shorter prison sentence is more appropriate in this instance.”

During his sentencing argument, on rebuttal, trial counsel stated: “Now, the Defense Counsel said, ‘there’s no evidence before you that he’s ever done anything like this before.’ And there is no evidence before you. But think what we know, common sense, ways of the world, about child molesters.” Defense counsel objected to this statement and trial counsel asserted that “I’m just arguing ways of the world.” The military judge overruled the objection. In instructing the panel prior to sentencing deliberation, the military judge reminded the members that argument was not evidence and that the accused was to be sentenced only for the crimes for which he had been found guilty. However, he also told them it was appropriate for them to apply their “commonsense [sic] and knowledge of the ways of the world whether or not in your particular case that involves any implication suggested by counsel.” The military judge instructed the members that the maximum period of confinement was life without parole.

Slip op. at 5-6. The Air Force CCA determined that the trial counsel’s sentencing argument was error, finding “that this argument went beyond the evidence of record and any reasonable inference that can be derived from it, including the appellant’s unsworn statement.” United States v. Frey, No. 37759, slip op. at 2 (A.F.Ct.Crim.App. Jul. 3, 2013) (link to unpub. op.). But the court found no prejudice from the facts that the improper argument was just a brief part of the whole argument, that the improper argument was rebutted by the Defense, and that the improper argument was “further undermined by the curative instruction provided to the military judge.” Id., slip op. at 6. CAAF then granted review of a single issue:

Whether the Air Force court erred in finding trial counsel’s presentencing argument was harmless error where trial counsel insinuated that appellant will commit future acts of child molestation.

Chief Judge Baker begins by explaining that:

We agree with the CCA’s finding that the trial counsel’s sentencing argument was improper and see no reason to make a separate determination on this matter. By his own admission trial counsel’s statements were not derived from the evidence presented at trial. Moreover, in lieu of evidence, trial counsel appealed to members to apply their knowledge of the “ways of the world” to sentence Appellant based on a risk of recidivism through serial molestation.

Slip op. at 8. However, he explains that “prosecutorial misconduct does not automatically require” relief, and that it is tested by the three factors identified in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), and extended to sentencing argument in United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (CAAFlog case page). Slip op. at 9. These factors are:

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CAAF decided the Air Force case of United States v. Janssen, No 14-0130/AF, 73 M.J. 221 (CAAFlog case page) (link to slip op.), on Tuesday, April 15, 2014, finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge. CAAF finds that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

Judge Stucky writes for a unanimous court.

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

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

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

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

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

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

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

Slip op. at 13.

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

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

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

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

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

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

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

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

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

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

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

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CAAF decided the Army case of United States v. Kearns, No. 13-0565/AR, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Friday, March 21, 2014, finding that Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient, and affirming both the findings and the published decision of the Army Court of Criminal Appeals.

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

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

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

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

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

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

CAAF granted review to determine:

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

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

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

Slip op. at 8.

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

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

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

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

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

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

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

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

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

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

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

Judge Erdmann writes for a unanimous court.

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

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

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

And in a short discussion, Judge Erdmann concludes:

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

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

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