CAAFlog » CAAF Opinions

CAAF decided the Navy case of United States v. Castillo, __ M.J. __, No. 14-0724/NA (CAAFlog case page) (link to slip op.), on Monday, May 18, 2015. The court rejects Appellant’s two-fold challenge the Navy’s current requirement that its members self-report to military authority any arrest or initiation of criminal charges by civilian authorities. Finding that the Navy created the requirement in direct response to CAAF’s decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), and rejecting Appellant’s hypothetical applications as insufficient to sustain a facial challenge to the regulation, CAAF confirms the validity of the requirement, affirming the decision of the Navy-Marine Corps CCA.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court improperly determined that [the] duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.

The Navy has long required that its members report offenses punishable under the UCMJ. See Article 1137, U. S. Navy Regulations; United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976) (discussing predecessor Article 1139); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (discussing both). The Navy has also enforced various requirements that members report matters related to their own potential misconduct. But the Navy-Marine Corps Court of Criminal Appeals invalidated one such requirement in United States v. Serianne, finding that an order for Navy personnel to self-report alcohol-related arrests by civil authorities compelled an incriminatory testimonial communication in violation of the Fifth Amendment and contrary to the then-existing language of Article 1137, U.S. Navy Regulations, and CAAF affirmed on the basis of Article 1137 without reaching the constitutional issue. 68 M.J. 580 (N-M. Ct. Crim. App. 2009),aff’d, 69 M.J. 8 (C.A.A.F. 2010).

After Serianne, the Navy revised Article 1137 to explicitly authorize regulations that “require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.” ¶ 2.3, ALNAV 049/10 (Jul. 21, 2010). Other regulations followed, including a change to the Navy’s Standard Organization and Regulations Manual to include the following self-reporting requirement:

Any person arrested or criminally charged by civil authorities shall immediately advise their immediate commander of the fact that they were arrested or charged.

¶ 4.c, NAVADMIN 373/11 (Dec. 8, 2011) (amending ¶ 510.6, OPNAVINST 3120.32C (2005), superseded by ¶ 5.1.6, 3120.32D (Jul. 16, 2012)) (available here).

Appellant ran afoul of this new requirement:

In February 2012, Appellant was arrested in Kitsap County, Washington for driving under the influence.3 She did not report the arrest to her command. Her command learned of the arrest during an unrelated visit to the local courthouse, during which one of her supervisors noticed her name on the court’s docket. She was subsequently charged with violating a lawful order, to wit, wrongfully failing to report the arrest, in violation of Article 92, UCMJ.

Slip op. at 7. Appellant challenged the legality of the requirement at trial and again on appeal at the NMCCA, asserting that the arrested-or-charged reporting requirement conflicts with Article 1137, U.S. Navy Regulations (superior regulatory authority), and that it violates the Fifth Amendment. Both arguments failed at trial and at the NMCCA, and now they fail at CAAF.

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CAAF decided the Air Force case of United States v. Torres, __ M.J. __ No. 14-0222/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 12, 2015. The court unanimously finds that the military judge erred in instructing the members on the defense of lack of mental responsibility when Appellant asserted the defense of automatism in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure. However, the court splits 3-2 to find this error harmless, affirming the findings, sentence, and the decision of the Air Force CCA.

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

CAAF granted review of a single issue:

Whether the military judge erred by denying the defense requested instruction.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

The aggravated assault specification alleged that Appellant assaulted his wife by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” Slip op. at 2. Appellant’s defense was that he suffered a seizure and his actions were involuntary. Specifically:

Appellant sought to show that he had an epileptic seizure on the morning of May 13, 2008, and that he thus was experiencing an altered state of consciousness when he assaulted his wife. Appellant further asserted that this altered state of consciousness rendered his actions involuntary, and argued that the Government had therefore failed to prove that his conduct “was done with unlawful force or violence” as required for aggravated assault.

Slip op. at 4 (emphasis in original) (citation omitted). Appellant’s defense counsel also asked the military judge to instruct the members that they must be “satisfied beyond a reasonable doubt that the accused, at the time of the alleged offense acted voluntarily” in order to convict him. Slip op. at 5 (quoting record).

However, the military judge refused to give the instruction requested by the defense. Rather, the military judge instructed the panel consistent with the affirmative defense of lack of mental responsibility, and “consistent with this affirmative defense, the military judge further instructed the panel that if it concluded that the Government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct.” Slip op. at 5.

CAAF holds that the military judge erred in giving this instruction, though it acknowledges that military law is not exactly clear on how to handle a defense of automatism:

Thus, as noted above, at the time of trial in the instant case, the state of the law was not particularly clear in regard to whether automatism should be viewed as potentially negating an accused’s mens rea, or potentially negating the actus reus, or both. What was clear, however, was that neither epilepsy nor automatism constituted a mental disease or defect and this Court has never held that the affirmative defense of lack of mental responsibility applies in these cases. Indeed, we find it was error for the military judge in the instant case to instruct the panel in that manner.

Slip op. at 7-8 (emphasis in original).

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CAAF decided the Marine Corps case of United States v. Norman, __ M.J. __, No. 14-0524/MC (CAAFlog case page) (link to slip op.), on Wednesday, April 29, 2015. The court finds that the military judge erred in admitting lay opinion testimony about the service discrediting nature of Appellant’s alleged child endangerment by culpable negligence, but that Appellant’s conviction is nevertheless legally sufficient because of other evidence in the record that may have been considered by the members, even though the trial counsel didn’t argue it. The court affirms the opinion of the Navy-Marine Corps CCA that affirmed the findings and sentence.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of one issue:

Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.

Appellant – a sergeant in the Marines – was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of a single specification of child endangerment by culpable negligence in violation of Article 134, charged as service discrediting conduct. In the same trial Appellant was acquitted of four specifications of aggravated assault in violation of Article 128, UCMJ, and four additional specifications of child endangerment by design and/or by culpable negligence in violation of Article 134. The members sentenced Appellant to confinement for sixty days, reduction to E-1, and a dishonorable discharge.

The sole conviction for child endangerment related to burns suffered by Appellant’s infant child while Appellant was giving the child a bath. The child suffered second and third-degree burns, and “was treated for fifty days at the Maricopa Burn Center, undergoing seven surgeries to excise his burnt skin and receive skin grafts for his third-degree burns.” Slip op. at 5-6. There were no witnesses to the incident, but Appellant made statements to law enforcement in which he first stated that he ran the water at “full cold,” and then subsequently stated that he “turned the handle of the faucet to approximately the 9:00 position” and left the child in the water for 30-45 seconds. Slip op. at 4-5 (marks omitted). Yet investigation revealed that with the faucet at the 9 o’clock position, the water temperature in Appellant’s bathroom was only 115 degrees Fahrenheit, and an expert testified that at that temperature “clearly exposure is going to need to last much more than ten minutes in order to produce a third-degree burn in an adult.” Slip op. at 20 (marks omitted).

As charged in this case, the offense of child endangerment by culpable negligence has four elements:

  1. That the accused had a duty for the care of a certain child;
  2. That the child was under the age of 16 years;
  3. That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
  4. That, under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States, pt. IV, ¶ 68a (2012). To prove the element that the conduct was of a servicing discrediting nature, the Government presented the lay testimony of a Marine staff sergeant (and military policeman) to opine on “whether Appellant’s conduct was of a nature to bring discredit upon the armed forces.” Slip op. at 6. The defense objected to the testimony but the military judge permitted it.

CAAF finds that the military judge abused his discretion in permitting the testimony of the staff sergeant. Nevertheless, CAAF affirms Appellant’s conviction by concluding that “a rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds.” Slip op. at 22. The court reaches this conclusion despite the fact that “trial counsel made no mention of the terminal element during closing arguments, omitting any mention of [the staff sergeant’s] testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record.” Slip op. at 22 n.5.

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CAAF decided the Army case of United States v. Adams, __ M.J. __, 14-0495/AR (CAAFlog case page) (link to slip op.), on Monday, April 27, 2015. The court reverses Appellant’s conviction for larceny after concluding that Appellant’s confession, which was “the government’s key piece of evidence,” was improperly admitted because “virtually none of the facts we have previously articulated as essential were corroborated.” Slip op. at 11 (quoting the CCA’s opinion). CAAF reverses the decision of the Army CCA and the findings and sentence, and authorizes a rehearing.

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

CAAF granted review of a single issue in this case:

Whether the Army Court of Criminal Appeals erred in finding that the military judge did not abuse his discretion in admitting the portion of Appellant’s sworn statement regarding the [theft] of cocaine because the Government failed to corroborate, in accordance with Military Rule of Evidence 304(g), the essential fact that appellant took cocaine.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of larceny in violation of Article 121 (as a lesser included offense of the charged offense of robbery in violation of Article 122). He was sentenced to confinement for 165 days, reduction to E-1, and a bad-conduct discharge.

Appellant’s conviction was based on an alleged armed robbery of cocaine from a local drug dealer. Acting on a tip from another soldier identified as an accomplice in the theft (but who did not testify at trial because he was in an unauthorized absence status), Army investigators interrogated Appellant, and Appellant  gave a written statement in which he admitted to stealing cocaine from the drug dealer, using a S&W handgun, near a local WalMart.

The statement given by Appellant was admitted at trial over a Defense objection on corroboration grounds. The corroboration rule – M.R.E. 304(g) (2012) (relocated to M.R.E. 304(c) (2013)) – permits use of an admission or confession of the accused against the accused “only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.” Additionally,

If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.

M.R.E. 304(g) (2012) (relocated to M.R.E. (c)(2) (2013)). In this case the Government did not present corroborating testimony from Appellant’s accomplice or from the victim. Rather, the Government presented the testimony of Army investigators. That testimony directly corroborated the existence of a suspected drug dealer matching Appellant’s description of his alleged victim (who was known to the investigators), the existence of the handgun (as seized from Appellant’s home), and the existence of a local WalMart fitting Appellant’s description of the location of the alleged larceny. However, the testimony did not directly corroborate the existence of any cocaine, the object of the alleged larceny.

Nevertheless, the military judge ruled that much of Appellant’s confession was admissible based on the following corroboration:

The description of the handgun the accused admitted to “waiving [sic] around quick” is a “S&W .40 cal.” This matches the description of [the weapon found in the search]. . . . [T]he Court finds that these items found in the accused’s home four days after the alleged crimes coupled with the testimony regarding the location of a Walmart and Microtel in Evans Mills, New York to be sufficient to meet the standard of the slight corroboration required by the rule and case law.

Slip op. at 6. On review, the Army CCA found that the military judge did not abuse his discretion in making that ruling, and the CCA affirmed the findings and sentence. CAAF then granted review in Adams and in another case also presenting a corroboration issue: United States v. Bennett, No. 14-0658/AR (grant discussed here).

Today’s ruling doesn’t just reverse the Army CCA; it also breathes new life into the corroboration rule.

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CAAF decided the Air Force case of United States v. Olson, 74 M.J. 132, No. 14-0166/AF (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the military judge did not err in concluding that Appellant’s consent to a search of her home was voluntary, affirming the decision of the Air Force CCA.

Judge Stucky writes for a functionally-unanimous the court. Chief Judge Baker writes separately, concurring.

CAAF granted review to determine:

Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. Appellant was sent to meet with Air Force investigators in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Then:

The agents advised Appellant that her husband was suspected of distributing illegal drugs on base and that he had been arrested by Calvert County, Maryland, police. The agents asked for consent to search her residence, which she was reluctant to give. Appellant wanted to telephone her husband but was dissuaded from doing so by the agents. At the time, Appellant resided off base with her husband in Maryland, although he had been absent from the house since July. During a smoke break outside the building, an agent tried to convince her to consent to the search. Appellant understood that the agents could try to convince her to consent, and she worried that they were trying to get her in trouble.

Slip op. at 4. Eventually she consented, and drugs and drug paraphernalia were discovered in the residence. She was later convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.

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CAAF decided the Army case of United States v. Bennitt, 74 M.J. 125, No. 12-0616/AR (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the Army CCA erred in approving Appellant’s sentence, because the CCA made a finding based on a theory not presented at trial. CAAF reverses the decision of the Army court and remands the case for further action.

Judge Ryan write for the court. She is joined by all but Chief Judge Baker, who dissents.

CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

This is CAAF’s second opinion in this case. Previously, in a 2013 decision (CAAFlog case page), CAAF reversed Appellant’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died in Appellant’s barracks room in 2009. Yet Appellant also pleaded guilty to four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, and CAAF remanded the case for reassessment of the sentence based on just those offenses. Despite the fact that Appellant was no longer convicted of manslaughter, the CCA affirmed the entire adjudged sentence (confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge) in two opinions:

The CCA explained that “[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for CourtsMartial [sic] 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013 WL 5588229, at *1.

On a motion for reconsideration in light of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again reassessed, and did not change, Appellant’s sentence. United States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App. Mar. 25, 2014) (unpublished). The CCA’s reasoning did change, however. The CCA concluded that evidence of LK’s death was admissible aggravation evidence because Appellant’s Article 112a, UCMJ, conviction of oxymorphone distribution on divers occasions on or about February 14, 2009, included distribution of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at *3.

Slip op. at 2-3 (marks in original). Yet Judge Ryan finds fault with the CCA’s revised reasoning, concluding that “the CCA erred as a matter of law in its second reassessment when it stated that Appellant was convicted of distribution of oxymorphone to LK as part of his Article 112a, UCMJ, conviction.” Slip op. at 4. This was error because:

The CCA’s finding was based on “a theory not presented to the trier of fact.”

Slip op. at 9.

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CAAF decided the Air Force case of United States v. Piolunek, 74 M.J. 107, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page) (link to slip op.), on Thursday, March 26, 2015. The court sets aside its own recent decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), with the frank acknowledgement of: “We erred.” Slip op. at 4. CAAF draws a line between a case where members might have convicted an appellant on the basis of an unconstitutional statute or legal theory, and one where the conviction involves only a factual deficiency, and the court affirms Appellant’s child pornography convictions and the decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Judge Erdmann. He writes separately, dissenting in part but concurring in the result.

CAAF considered two issues in this case (one granted, the other certified), though it summarily rejected the certified issue as presenting a question of fact that the court lacks jurisdiction to consider:

Granted Issue: Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.

Certified Issue: Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

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 wrongful receipt of child pornography, one specification of wrongful possession of child pornography, one specification of enticing a minor child to send sexually explicit images, and one specification of communicating indecent language to a minor, all in violation of Article 134. He was sentenced to reduction to E-1, confinement for 18 months, and a dishonorable discharge.

Appellant’s convictions were related to his online communications with the teenage sister of a friend, during which he received sexually explicit images of the girl when she was 14 and 15 years old. He was charged with receipt and possession of child pornography in connection with those images, the Government admitted 22 images into evidence at trial, and Appellant was convicted. However, on review the Air Force CCA found that three of the 22 images did not meet the definition of child pornography at issue in the case. Specifically, in a published decision, the CCA noted that “while [the girl] is naked in each of the images, none of these three images contain an exhibition of her genitals or pubic area.” United States v. Piolunek, 72 M.J. 830, 838 (A.F. Ct. Crim. App. 2013).

Because it found that the three images did not meet the definition of contraband child pornography, the CCA concluded that Appellant’s possession of them was constitutionally protected conduct and that a conviction that might be based on that conduct is erroneous. But the CCA affirmed Appellant convictions after concluding that it had “no doubt that the 3 images in question did not materially contribute to the finding of guilt because of the evidence relating to the other 19 images.” Id. at 839. This finding of harmlessness seemed to present a direct challenge to CAAF’s decision in Barberi – also a child pornography case – where Judge Erdmann wrote for the majority and explained that:

An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot be conceived of as harmless.

Barberi, 71 M.J. at 132 (marks and citation omitted). Now the lone dissenting voice in Piolunek, Judge Erdmann tries to salvage something of the reasoning from Barberi by highlighting that CAAF “recognized that this type of constitutional error is reviewable for harmlessness.” Piolunek, diss. op. at 9. See also Barberi, 71 M.J. at 132 (rejecting Barberi’s urging “to set aside the verdict without testing for prejudice.”). But Judge Ryan leads the majority in Piolunek to craft a decision that supersedes Barberi in its entirety, holding that the admission of the three factually deficient images was not constitutional error at all.

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CAAF decided the interlocutory Air Force case of United States v. Buford, 74 M.J. 98, No. 14-6010/AF (CAAFlog case page) (link to slip op.), on Monday, March 24, 2015. A divided court finds that the military judge was wrong when she concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case. CAAF therefore summarily reverses the military judge’s ruling that suppressed the evidence, and the decision of the Air Force CCA that partially affirmed that ruling.

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

Appellee is pending trial by general court-martial on charges that he committed an indecent act with a minor in violation of Article 120, and six specifications relating to child pornography, in violation of Article 134. On October 5, 2013, the military judge granted a Defense motion to suppress evidence discovered on three electronic devices. The Government appealed, and the AFCCA partially affirmed. The Judge Advocate General of the Air Force then certified one issue to CAAF, and the court granted review of a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

These devices were discovered after Appellee’s wife learned of sexually explicit communications between Appellee and other females, and the wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow.  A1C Marlow was an active duty Air Force Security Forces member, and he searched Facebook and email accounts connected to Appellee, preserving screenshots of sexually explicit matters. He also encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C Marlow was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. In a dense decision, the CCA affirmed that ruling in part. But Judge Ohlson’s majority opinion for CAAF reverses the ruling with a relatively-simple holding:

[T]he fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case.

Slip op. at 7.

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CAAF decided the certified Air Force case of United States v. Morita, 74 M.J. 116, No. 14-5007/AF (CAAFlog case page) (link to slip op.), on Monday, March 16, 2015. The court rejected the Government’s expansive argument for court-martial jurisdiction over reservists, concluding that a forged order alone does not establish court-martial jurisdiction over a reservist not otherwise performing military duties. CAAF partially answers the certified issue in the negative, reverses the Air Force CCA in part, and remands the case for reassessment of, or a rehearing on, the sentence.

Judge Ryan writes for a unanimous court.

CAAF’s review involves two issues related to court-martial jurisdiction, one certified and the other granted:

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Appellee, a reservist, repeatedly forged signatures in order to place himself on travel orders and to receive compensation for travel expenses related to reserve duty. “Appellee’s false claims for travel reimbursement totaled $124,664.03, and he forged 510 signatures or initials on more than 100 documents.” Slip op. at 6. He also had periods of legitimate reserve duty, and some of his offenses were committed during those periods.

At trial Appellee challenged the existence of court-martial jurisdiction, asserting (generally) that his misconduct occurred while he was not subject to the UCMJ. “The Government defended jurisdiction primarily on the grounds that Appellee made the forgeries in his official capacity as a reserve officer.” Slip op. at 7.

The military judge agreed with the Government, but the AFCCA reversed in part in a published opinion (discussed here) in which it reversed many of Appellee’s convictions and reduced the sentence dramatically. In particular:

[T]he CCA identified three separate statuses that Appellee occupied during the charged time frame: (1) valid active duty status obtained through authorized 120 MPA man-day tours, Morita, 73 M.J. at 558; (2) active duty status or inactive duty status based on documents that contained forgeries, although there was no evidence that Appellee actually reported for duty during the time periods covered by the forgeries, id. at 559; and (3) reserve status, held during the remainder of the charged time frame. Id. at 560. The CCA held that the first two categories conferred subject matter jurisdiction under Article 2(a), UCMJ. Regarding the third category, the CCA found that the record did not show enough facts to conclude that Appellee’s activities as a reservist rose to the level of “serving with” the armed forces under Phillips, 58 M.J. at 220, nor to show that the remaining statutory criteria were fulfilled, and thus there was no subject matter jurisdiction under Article 2(c), UCMJ.

Slip op. at 8. Judge Ryan’s opinion affirms the CCA’s finding of jurisdiction under the first status and its finding of no jurisdiction under the third status, but it reverses the CCA’s finding of jurisdiction under the second status, resulting in the reversal of even more of Appellee’s convictions. Additionally, Judge Ryan’s opinion does not directly address the portion of the certified issue involving the Government’s motion to submit documents, because the CCA found that the documents would not have changed its opinion and so “there is no justiciable issue for [CAAF] to resolve.” Slip op. at 20 n.7.

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CAAF decided the Air Force case of United States v. Jones, 74 M.J. 95, No. 14-0057/AF (CAAFlog case page) (link to slip op.), on Wednesday, March 11, 2015. The court holds that the de facto officer doctrine does not apply to permit the inclusion of Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) on the panel of the Air Force Court of Criminal Appeals that reviewed Appellant’s case. CAAF reverses the decision of the Air Force court and remands the case for a new review before a properly constituted panel.

Judge Stucky writes for a unanimous court.

Jones is a sequel to last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), where the court concluded that Mr. Soybel’s appointment to the AFCCA was invalid. Yet while the appellant in Janssen made a prompt objection to Mr. Soybel’s participation in the CCA’s review of his case, the appellant in Jones did not raise the issue at the CCA. This failure to object led CAAF to grant review of a single issue in Jones:

Whether the de facto officer doctrine conferred validity upon Judge Soybel’s participation in the Air Force Court of Criminal Appeals’ decision in Appellant’s case. See Ryder v. United States, 515 U.S. 177, 182-84 (1995); Nguyen v. United States, 539 U.S. 69, 72-73 (2003); United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960); Ayshire Collieries Corp. v. United States, 331 U.S. 132 (1947); Norton v. Shelby County, 118 U.S. 425, 446 (1886); United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014); United States v. Elliott, 15 M.J. 347 (C.M.A. 1983).

Judge Stucky’s opinion is short, and he rejects the Government’s two main arguments with just a handful of sentences.

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CAAF decided the Air Force case of United States v. McFadden, 74 M.J. 87, No. 12-0501/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 3, 2015. A sharply divided court finds that the military judge did not err in denying Appellant’s motion for a mistrial or in failing to sua sponte excuse a member for cause after the member equated Appellant’s invocation of her 31(b) right to remain silent to lying by omission. CAAF affirms Appellant’s convictions and the decision of the Air Force CCA.

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

CAAF granted review of two issues in this case:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. She pleaded guilty to one specification of unauthorized absence in violation of Article 86, and not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). The Air Force CCA affirmed in three separate opinions.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant testified in her own defense during the findings phase of her trial, asserting that she never formed the intent to remain away permanently. Yet during her testimony, Appellant acknowledged that during pretrial interrogations she invoked her right to remain silent when asked about her intent. Then the members were permitted to question Appellant (without first submitting their questions in writing to the military judge, as required by M.R.E. 614(b)). One member – named Major Cereste – questioned Appellant’s invocation of her right to remain silent, likening it to lying by omission:

Major Cereste, a court member, and Appellant then engaged in the following exchange:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.

Slip op. at 4-5 (quoting record) (emphasis added). Appellant’s counsel subsequently moved for a mistrial, but did not seek to voir dire or disqualify the member. The motion for a mistrial was denied, but the military judge instructed the panel (using language provided by the defense) that Appellant’s invocation of her right to remain silent was not lying by omission.

Judge Stucky’s majority opinion doesn’t explicitly state that the failure of the defense to challenge the member or make a more aggressive objection is the reason for the court’s decision in this case, but it comes pretty close. His opinion also highlights the discretionary nature of a military’s judge’s ability to do more than requested.

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CAAF decided the Army case of United States v. Newton, 74 M.J. 69, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.

Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.

Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:

  • In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
  • In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
  • In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.

Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.

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CAAF decided the Air Force case of United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

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CAAF decided the Army cases of United States v. Peters, 74 M.J. 31, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, 74 M.J. 39, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.

Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.

CAAF has made it clear that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). But those separate tests receive different degrees of deference on review:

A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.

United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.

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In this post from last October, I analyzed the NMCCA’s en banc decision in United States v. Spurling, No. 201400124 (N-M. Ct. Crim. App. Oct. 16, 2014). The case involves allegations of ineffective assistance by the appellant’s trial defense counsel, and the CCA’s decision explained that the two trial defense counsel functionally admitted their deficiency in affidavits to the CCA. But in a split decision, the CCA found no prejudice to the appellant.

The asserted deficiency was in the failure to seek suppression of a statement made by the appellant. The majority applied the objective standard articulated by CAAF last year in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page), and concluded that a motion to suppress would not have prevailed at trial.

But CAAF summarily reversed the CCA on Friday, February 6, 2015, finding that the CCA’s decision improperly applied the Jones standard and also that it applied the wrong standard to determine whether a motion to suppress would have succeeded:

No. 15-0228/MC. U.S. v. Myles R. Spurling. CCA 201400124. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that the Court of Criminal Appeals applied erroneous standards of review in evaluating Appellant’s ineffective assistance of counsel claim. First, in its review of the facts and circumstances to determine whether a motion to suppress would have been meritorious, the Court of Criminal Appeals relied on the subjective beliefs and opinions of the questioner and third-parties in assessing whether Appellant faced questioning from an individual in an official capacity or for disciplinary purposes. As we made clear in United States v. Jones, 73 M.J. 357, 362 (C.A.A.F. 2014), the analysis is informed by an objective standard. Additionally, when the Court of Criminal Appeals reviewed whether the motion to suppress would have been “meritorious,” it correctly cited the “reasonable probability” of success standard but then equated that standard with a standard of preponderance of the evidence. United States v. Spurling, No. NMCCA 201400124, slip op. at 7 n.18 (N-M. Ct. Crim. App. Oct. 16, 2014). Whether a motion is meritorious falls under the “reasonable probability” standard of Strickland v. Washington, 466 U.S. 668 (1994), and “[a] reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. See United States v. Jameson, 65 M.J. 160, 161-62 (C.A.A.F. 2007). Therefore, the Court of Criminal Appeals applied the wrong standard in assessing the meritorious aspect of the ineffective assistance claim.

Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (1) APPLIED AN ERRONEOUS STANDARD OF REVIEW IN EVALUATING WHETHER A MOTION TO SUPPRESS WOULD HAVE BEEN MERITORIOUS IN ASSESSING APPELLANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, AND (2) ERRED IN DETERMINING THAT ANY SUCH MOTION WOULD FAIL BECAUSE APPELLANT WAS NOT ENTITLED TO WARNINGS PURSUANT TO ARTICLE 31(b).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), utilizing the standards of review set forth in Jones and Strickland. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.