CAAFlog » CAAF Opinions

CAAF decided the Coast Guard case of United States v. Harpole, __ M.J. __, No.17-0171/CG (CAAFlog case page) (link to slip op.), on Wednesday, February 14, 2018. The court unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.

Judge Ohlson writes for the court, joined by all but Chief Judge Stucky who dissents because he concludes that any motion to suppress would have failed.

CAAF granted review of three issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to Appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress Appellant’s unwarned admissions. These admissions were made to YNI NIPP when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31 UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

The third granted issue was not briefed and was resolved by United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page). Slip op. at 2.

After a night of drinking during a port call in Tahiti, Seaman (E-3) Harpole went into a four-person female stateroom aboard the USCGC Polar Star, ostensibly to retrieve his backpack from the alleged victim, Storekeeper Third Class (SK3) GR. While he was in the room, he and GR had sex. GR was later confronted by her roommates about the encounter but stated she could not remember what happened (because she too had been drinking during the port call). She then reported the incident as a sexual assault.

“Three days after the incident, Appellant informed his friend, Seaman Boatswain’s Mate (SNBM) SC, and a victim advocate, Yeoman First Class (YN1) Nipp, that SK3 GR had sexually assaulted him.” Slip op. at 4 (emphasis in original). YN1 Nipp then reported Harpole’s statements to the command and gave “a detailed written statement about [Harpole]’s communication to her.” Slip op. at 4.

Harpole’s defense moved to prevent YN1 Nipp from testifying, asserting the Mil. R. Evid. 514 victim advocate-victim privilege. The military judge found that the privilege does not apply and denied the motion. Harpole was then convicted by a general court-martial composed of members with enlisted representation of making a false official statement, two specifications of sexual assault, and housebreaking, and he was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. The Coast Guard CCA affirmed the findings and sentence, agreeing that the victim advocate-victim privilege does not apply and rejecting a claim of ineffective assistance of counsel on the basis that “the theory that [YN1 Nipp] was acting as a Victim Advocate is factually inconsistent with the theory that [YN1 Nipp] was required to give Appellant his Article 31(b) rights.” United States v. Harpole, No. 1420, slip op. at 8 (C.G. Ct. Crim. App. Nov. 10, 2016).

Judge Ohlson’s opinion of the court affirms the military judge and Coast Guard CCA’s conclusions about the privilege, but it scolds the CCA for asserting an inconsistency, noting that “there is nothing improper or unusual about counsel presenting arguments in the alternative before a trial judge.” Slip op. at 10 n.11.

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CAAF decided the Army case of United States v. Jerkins, __ M.J. __, No. 17-0203/AR (CAAFlog case page) (link to slip op.), on Thursday, February 8, 2018. Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.

Chief Judge Stucky writes for the court, joined by Judge Sparks and Senior Judge Effron. Judge Ohlson dissents, joined by Judge Ryan.

Major (O-4) Jerkins was convicted of assault consummated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. After the members made their findings, the defense called witnesses during the sentencing phase to testify about Jerkins prior good service. In rebuttal the prosecution offered into evidence a GOMOR that was issued approximately two weeks before trial.

A GOMOR is a nonpunitive (administrative) letter inserted into the recipient’s personnel record, and it usually has a significant negative impact on the recipient’s military career. Paragraph 3-4 of Army Regulation 600-37 establishes procedures for the issuance and filing of a GOMOR, including a process that ensures soldiers have an opportunity to respond to the underlying factual claims. In Jerkins case, that process was still underway when the GOMOR was admitted into evidence and Jerkins was sentenced to a dismissal.

The defense objected to admission of the GOMOR, but the military judge admitted it over the objection. The members then sentenced Jerkins to confinement for six months and a dismissal. Jerkins had 19 years of service when he was charged, and the adjudged dismissal denied him a military retirement. The Army CCA affirmed the findings and sentence after rejecting a claim of ineffective assistance of counsel raised against Jerkins’ civilian and military trial defense counsel. CAAF then granted review of a single issue:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

While CAAF splits on the impact of the GOMOR on the adjudged sentence, it unanimously concludes that the GOMOR was improperly admitted even under the deferential standard of abuse of discretion.

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CAAF decided the interlocutory Air Force case of United States v. Mangahas, __ M.J. __, No. 17-0434/AF (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Answering only the issue specified by the court after oral argument, CAAF holds that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.

Judge Ryan writes for a unanimous court.

Mangahas is a lieutenant colonel (O-5) in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. But she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.

Mangahas raised numerous objections, including objections based on the statute of limitations and on his due process (Fifth Amendment) right to a speedy trial. The speedy trial motion got traction, and a military judge dismissed the charge with prejudice (meaning Mangahas may never be tried), in part because the passage of time caused the loss of potentially-exculpatory evidence.

But the prosecution appealed, and a three-judge panel of the Air Force CCA reversed the military judge’s dismissal and allowed the trial to proceed. CAAF then ordered a stay of proceedings and granted review of the speedy trial issue:

Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating [Appellant’s] Fifth Amendment Right to a Speedy Trial.

CAAF also heard oral argument on the speedy trial issue. But then it specified a wholly different issue for review and ordered additional briefs:

In light of Coker v. Georgia, 433 U.S. 584, 598 (1977), and United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), was the offense of rape of an adult woman, a violation of Article 120, UCMJ, 10 U.S.C. § 920 (Supp. II 1997), a crime punishable by death within the meaning of Article 43, UCMJ, 10 U.S.C. § 843 (1994).

Article 43 of the UCMJ – like federal civil law – contains a baseline five year statute of limitations. Congress amended Article 43 in 1986 to add exceptions, including an exception for “any offense punishable by death.” Pub. L. 99–661, §805(a). At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the offense wasn’t made gender neutral until 1992), and the prosecution of Mangahas depended on application of that capital exception.

Nine years before Congress added the capital exception to Article 43, however, the Supreme Court held that death is an unconstitutional punishment for the offense of rape of an adult woman in Coker v. Georgia, 433 U.S. 584, 598 (1977). CAAF acknowledged that limitation in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), remarking that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” regardless of whether there were aggravating factors that would make death a constitutionally-permissible punishment.

Now CAAF reverses Willenbring and its progeny, concluding that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” Slip op. at 8 (emphases in original).

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CAAF decided the Army case of United States v. Acevedo, __ M.J. __, No. 17-0224/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

Judge Sparks writes for the court, joined by all but Judge Ryan who dissents.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM by inveiglement, in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

CAAF then granted review of four issues. Three were Dalmazzi/Ortiz trailer issues. The fourth questioned:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

A majority of CAAF finds that the evidence is sufficient. Judge Ryan, however, rejects this holding as “contrary to the precedent of the Supreme Court, the federal courts of appeals that have considered the issue, and our own Court,” and she invokes CAAF’s “heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a rough form of justice.” Diss. op at 4 (marks and citation omitted).

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CAAF decided the Air Force case of United States v. Honea III, __ M.J. __, No.17-0347/AF (CAAFlog case page) (link to slip op.), on Thursday, February 1, 2018. Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.

Judge Ohlson writes for a unanimous court.

CAAF granted review of two issues:

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the    military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

At the conclusion of the oral argument in this case, Chief Judge Stucky said:

Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.

The mess, however, prevails.

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CAAF decided the Air Force case of United States v. Chisum, __ M.J. __, No.17-0199/AF (CAAFlog case page) (link to slip op.), on Friday, January 26, 2018. Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

Back in 2016, in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), the Air Force CCA “ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review.” 75 M.J. at 946 n.3. Such records are protected by Mil. R. Evid. 513, the military psychotherapist-patient privilege. The rule was significantly modified after the trial of this case (discussed here and here), but at the time of trial the rule included an exception for “when admission or disclosure of a [psychotherapist] communication is constitutionally required.” Mil. R. Evid. 513(d)(8) (2014) (deleted in 2015).

Despite this exception, the military judge rejected a request from Chisum’s defense counsel to review the mental health records of two key prosecution witnesses – Airman Basic AK and CR – for evidence related to their ability to accurately perceive and recall Chisum’s alleged illegal drug activity. Having obtained the records (for the first time), however, the Air Force CCA reviewed them and concluded that the military judge was wrong to refuse to conduct such a review. But the CCA also found the error harmless because “the additional information contained in the [mental health] records would not have changed the substance or effectiveness of [the defense] cross-examination or defense theory.” 75 M.J. at 950.

CAAF then granted review to determine:

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

In today’s short opinion the court unanimously concludes that any error was harmless. But it does so after the taking the unusual step of duplicating the CCA’s review of evidence not presented at trial.

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CAAF decided the Coast Guard case of United States v. Riesbeck, __ M.J. __, No. 17-0208/CG (CAAFlog case page) (link to slip op.), on Tuesday, January 23, 2018. Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” CAAF sets aside the findings and orders the charges dismissed with prejudice.

Judge Ryan writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

That panel, however, had remarkable demographics: “the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates – persons trained to provide support and counseling to victims of rape and sexual assault – and two men.” Slip op. at 1. CAAF granted review of two issues (both specified by the court) regarding that composition:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them

Today’s opinion doesn’t address Issue II because in resolving Issue I the court concludes that:

[T]he error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice.

Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.

Slip op. at 18 (marks and citations omitted) (paragraphing added).

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CAAF issued summary dispositions in three Hills trailers yesterday, two from the Army and one from the Marine Corps. The court reverses the sex offense convictions in one case, but affirms in the other two (finding the Hills error to be harmless).

The findings of harmlessness come one day after CAAF heard oral argument in United States v. Williams, No. 17-0285/AR (CAAFlog case page), during which the bench was lively with questions about whether the error was harmless. CAAF recently found prejudice, reversing and rebuking the Army CCA in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page). These three newer dispositions provide additional detail about what the court finds acceptable (and not).

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CAAF decided the Army case of United States v. Short, __ M.J. __, No. 17-0187/AR (CAAFlog case page) (link to slip op.), on Friday, January 5, 2018. Reviewing various improprieties by the prosecution that prompted the defense to request a mistrial three separate times, CAAF concludes that those requests were properly denied because the trial counsel’s misconduct was not so severe that curative instructions were inadequate. But two judges dissent and would reverse the findings, concluding that the misconduct was severe, the instructions ineffective, and the evidence underwhelming.

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

CAAF granted review to determine:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

“Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996). “It is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct.” Id. at 6. “In analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (marks and citation omitted). “[P]rosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that [CAAF] cannot be confident that the members convicted the appellant on the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).

Sergeant (E-5) Short was accused of domestic violence against his wife. The prosecution sought to introduce evidence regarding the general nature of the marital relationship, the defense objected, and the military judge agreed with the defense and prohibited the prosecution from eliciting most of its desired testimony. But the trial counsel offered it anyway, over and over again. “To combat [that] improper testimony, the military judge took strong and repeated corrective action . . .” Slip op. at 3. That action included rebuking the trial counsel, warning the witnesses, and giving the members “several curative instructions which addressed the majority of Appellant’s sustained objections regarding M.R.E. 404(b).” Slip op. at 3.

The defense wasn’t satisfied, and so defense counsel requested a mistrial on three separate occasions. All were denied. Short was then convicted of three specifications of assault consummated by a battery and one specification of assault, and sentenced to a bad-conduct discharge.

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CAAF decided the Army case of United States v. Guardado, 77 M.J. 90, No. 17-0183/AR (CAAFlog case page) (link to slip op.), on Tuesday, December 12, 2017. Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues but requested briefing on only the first:

I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.

II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.

In United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the CCA dissected CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), and found the improper use of charged sexual offenses as evidence of propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors. But those five factors are not explicitly part of CAAF’s decision. Rather, Chief Judge Stucky explains that:

There are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by “tipp[ing] the balance in the members’ ultimate determination.” Hills, 75 M.J. at 358.

This is not such a case.

Slip op. at 7.

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CAAF decided the certified Army case of United States v. Jacobsen, 77 M.J. 81, No. 17-0408/AR (CAAFlog case page) (link to slip op.), on Monday, December 11, 2017. Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.

Judge Ryan writes for the court, joined by Chief Judge Stucky, Judge Ohlson, and Judge Sparks. Senior Judge Cox dissents.

The case is an interlocutory appeal in an ongoing general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. The prosecution wants to introduce a prior statement of the alleged victim to rehabilitate her credibility, but the military judge prohibited it from doing so. The prosecution then appealed that ruling.

Article 62 authorizes interlocutory appeals under limited circumstances. One of them is when a military judge issues “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). The prosecution filed such an appeal, and the trial counsel certified “that the evidence excluded is substantial proof of a fact material in the proceeding.” Article 62(a)(2).

But the Army CCA found that it lacked jurisdiction to consider the appeal because, despite the trial counsel’s certification, the CCA concluded that the military judge did not exclude evidence that is substantial proof of a fact material in the proceeding. The Judge Advocate General of the Army then certified a single issue to CAAF:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

Yesterday’s opinion answers this question with a no. A majority of CAAF adopts the reasoning of the Army CCA that because interlocutory appeals are allowed only when the case “actually meet[s] specified criteria,” slip op. at 4 (quoting CCA opinion), “the ACCA had to satisfy itself that it had appellate jurisdiction before proceeding to review the merits of the appeal,” slip op. at 5. As the lone dissenting voice, however, Senior Judge Cox “see[s] no reason in military practice for an application of Article 62, UCMJ, that second guesses the trial counsel’s certification as to the impact that excluding evidence has upon its ability to successfully try its case.” Diss. op. at 3.

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CAAF decided the Coast Guard case of United States v. Bailey, 77 M.J. 11, No. 17-0265/CG (CAAFlog case page) (link to slip op.), on November 29, 2017. Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). But the court  finds ambiguity in the CCA’s action on the sentence, and so remands for clarification

Judge Ohlson writes for a unanimous court.

CAAF granted review of two issues:

I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”

II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

A general court-martial composed of members with enlisted representation convicted Seaman (E-3) Bailey, contrary to his pleas of not guilty, of three specifications of sexual assault, one specification of abusive sexual contact, and one specification of assault consummated by a battery in violation of Articles 120 and 128. The panel sentenced Bailey to confinement for 18 months, total forfeitures, and a dishonorable discharge.

The charges arose out of an alcohol-fueled sexual encounter between Bailey and a 24-year-old woman. Bailey was alleged to have committed sexual acts and contacts with the women when she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance. See Article 120(b)(3)(A), 10 U.S.C. § 920(b)(3)(A). At trial, Bailey’s defense counsel asked the military judge to instruct the members that incapable of consenting means complete and total impairment, proposing the following language:

“Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.

Slip op. at 2. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.

The case was tried in 2014, before CAAF’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page). Judge Ohlson, who writes for the unanimous court in today’s opinion, also wrote for a unanimous court in Pease and found that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting. Since then military judges often give an instruction consistent with the definition from Pease. That instruction is available here (Benchbook interim update 16-02).

But today’s opinion find that no such instruction is required (though a footnote encourages military judge to continue to give it), because “‘incapable’ is not a technical legal or scientific term.” Slip op. at 6. As for the instruction requested by the defense in this case, Judge Ohlson explains that “it contains an inaccurate statement of law.” Slip op. at 4. Multiple inaccuracies, in fact.

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CAAF decided the Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings, in the capital Army case of United States v. Hennis, 77 M.J. 7, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.

Judge Ohlson writes for a unanimous court.

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Today CAAF issued a per curiam decision in United States v. Gray, 77 M.J. 5, No. 17-0525 (link to slip op.).

The opinion addresses a writ-appeal petition filed by Ronald Gray, who is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Finding no jurisdiction, CAAF dismisses the writ-appeal petition with prejudice. Judge Ohlson is recused and took no part in the decision.

In this post from September I discussed recent developments in the case, including the writ-appeal petition. The petition before CAAF challenges the Army CCA’s denial of a writ of error coram nobis earlier this year. 76 M.J. 579 (link to slip op.).

Coram nobis is “a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). In Denedo, the Supreme Court concluded that a CCA “has jurisdiction to entertain [a] request for a writ of coram nobis” in a court-martial where direct review was over and the conviction was final. 556 U.S. at 914 (emphasis added). This is because: 

respondent’s request for coram nobis is simply a further step in his criminal appeal, [and so] the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.

556 U.S. at 914 (marks and internal citation omitted). Furthermore:

Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment.

556 U.S. at 915 (emphasis added).

But CAAF reaches a different conclusion in Gray:

The threshold question is whether this Court has jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.

Slip op. at 2.

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CAAF decided the interlocutory Air Force case of United States v. Pugh, 77 M.J. 1, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.

Judge Sparks writes for the unanimous court.

A general court-martial composed of officer members convicted Major (O-4) Pugh of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

United States v. Pugh, No. 2016-11, slip op. at 2 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.

After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then granted review of a single issue:

Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.

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