CAAFlog » CAAF Opinions

CAAF decided the certified Army case of United States v. Gurczynski, __ M.J. __, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

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CAAF decided the Coast Guard case of United States v. Ramos, __ M.J. __, No. 17-0143/CG (CAAFlog case page) (link to slip op.), on Wednesday, July 19, 2017. The court finds that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so. Accordingly, the military judge erred in failing to suppress Ramos’ statement, and the Coast Guard CCA erred in affirming that ruling.

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

CAAF granted review to determine:

Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.

The convictions related to Ramos’ civilian wife’s efforts to start a business manufacturing marijuana under Washington State’s recreational marijuana law. Such a business, however, violates federal civil and military law. The business failed, and the wife’s business partner (named Hart) made threats. Ramos reported those threats to his chain of command and was then interviewed by CGIS. Despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview. Ramos then made statements that were admitted against him during his court-martial.

The military judge denied a defense motion to suppress, concluding that there was “no requirement to give Ramos his Article 31(b) rights because [the agent] was not conducting a law enforcement or disciplinary inquiry, but was instead focused on ‘force protection.'” Slip op. at 4. The Coast Guard CCA affirmed, concluding that “the agents’ questions were focused on identifying and mitigating the threat.” Id.

In today’s opinion a majority of CAAF rejects this conclusion, finding instead that this case presents “a classic ‘mixed purpose'” of both force protection and a disciplinary inquiry. Slip op. at 7. The majority then concludes that the circumstances of the questioning “reflect[] conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. ” Slip op. at 8. It also rejects the operational context exception, finding that “there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings.” Slip op. at 11. But CAAF only reverses Ramos’ conviction of making a false official statement because “Ramos has not challenged his convictions on the drug-related offenses.” Slip op. at 11.

Judge Stucky’s dissent reaches the opposite conclusion on the purpose of the interview, finding that it “was not done for a law enforcement or disciplinary purpose” and so no warning was required. Diss. op. at 3.

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CAAF decided the Air Force case of United States v. Richards, __ M.J. __, No. 16-0727/AF (CAAFlog case page) (link to slip op.), on Thursday, July 13, 2017. The court holds that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search. Applying that rule to the facts of this case, CAAF affirms the military judge’s ruling that admitted the fruits of the search of the appellant’s electronic media, the decision of the Air Force CCA, and the appellant’s convictions.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards to confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.

The charges arose after a former participant in a Big Brothers of America program alleged that he was sexually assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship between Richards and another minor and involving electronic communications. That evidence supported a search authorization “for Appellant’s residence and person for items used to electronically communicate with [the minor].” Slip op. at 3. Numerous devices and hard drives were seized and sent to the Defense Computer Forensic Laboratory (DCFL) for extraction, whereby a software program “goes through the image – the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it pulls them all out and throws them into a directory on a new drive.” Slip op. at 4 (quoting examiner). “DCFL simply dumped all pictures and on-line chats from these [multiple] drives onto one big drive for review.” Slip op. at 4 (quoting a Special Agent). While searching the compiled extracted materials, the investigator discovered suspected child pornography and obtained new search authorizations. Subsequent investigation revealed more images, leading to Richards’ convictions.

Richards moved to suppress the fruits of the searches on the basis that the original search authorization was overbroad. That motion was rejected at trial and on appeal before the Air Force court, and is now rejected by CAAF as well.

Writing for the unanimous court, Judge Sparks avoids any bright-line rule for electronic searches except for the Fourth Amendment’s particularity requirement that prevents general searches, which are “a general exploratory rummaging in a person’s belongings.” Slip op. at 6 (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)). Instead, Judge Sparks explains that “the courts have looked to what is reasonable under the circumstances.” Slip op. at 6. And here, because the authorization was limited to evidence of communications with the minor (which could include images), it was reasonable.

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CAAF decided the Air Force case of United States v. Claxton, __ M.J. __, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.

Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.

Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.

The charges involved two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:

Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).

Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.

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CAAF decided the Navy case of United States v. Darnall, __ M.J. __, No. 16-0729/NA (CAAFlog case page) (link to slip op.), on Wednesday, June 28, 2017. Concluding that military criminal investigators did not have probable cause to apprehend Darnall, CAAF finds that the fruits of his subsequent interrogation should have been suppressed by the military judge. The findings and sentence are set aside, and the decision of the Navy-Marine Corps CCA is reversed, with a rehearing authorized.

Judge Sparks writes for a unanimous court.

Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of various offenses related to the importation, manufacture, and distribution of controlled substances (steroids and designer drugs). He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.

CAAF granted review to determine:

Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Darnall became a suspect when a U.S. Mail package containing dimethylone (a controlled substance analogue) was intercepted. The package was addressed to someone with Darnall’s name at an address in the town of Twentynine Palms, California, (the location of a large Marine Corps base where Darnall was stationed). Based on the address, Agent Pledger of the Marine Criminal Investigative Division (CID) suspected that the intended recipient of the package might be a servicemember, and he arranged “to have a counterfeit version of the package containing no real drugs delivered to Appellant at the regimental mailroom and to apprehend him after he picked it up.” Slip op. at 3. This occurred, and Darnall was apprehended (arrested), handcuffed, and interrogated, leading to the discovery of much incriminating evidence.

Darnall moved to suppress the evidence at trial on the basis that the apprehension was without probable cause. The military judge denied the motion and the the Navy-Marine Corps CCA affirmed. The CCA found that the military judge wrongly determined that Darnall previously lived at the residential address on the package, but the CCA concluded that even without this information there was probable cause to apprehend Darnall.

CAAF reverses. Judge Sparks finds that the CCA “provided minimal analysis” in its opinion and “unlike the lower court, we do not conclude that the facts . . . provide sufficient evidence to establish probable cause to apprehend.” Slip op. at 7. Rather, CAAF concludes that Agent Pledger’s actions were not “objectively reasonable law enforcement activity,” but instead was a “somewhat sloppy and apathetic investigation” leading to an apprehension “in clear violation of [Darnall’s] Fourth Amendment rights.” Slip op. at 10.

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CAAF decided the Army case of United States v. Commisso, __ M.J. __, No. 16-0555/AR (CAAFlog case page) (link to slip op.) on Monday, June 26, 2017. The court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.

Judge Ryan writes for a unanimous court.

Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. He was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence. But the CCA did not discuss the issue that CAAF granted to review, which is:

Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

In today’s unanimous decision Judge Ryan excoriates the members – two Colonels and a Lieutenant Colonel, all identified by name – for their “lack of candor” (slip op. at 2 and 12) and their “dishonesty” (slip op. at 11) during voir dire, concluding that had they been honest then Commisso “would have had at least a valid basis for challenging one or more of the panel members for cause.” Slip op. at 11.

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CAAF decided the Marine Corps case of United States v. Chikaka, 76 M.J. 310, No. 16-0586/MC (CAAFlog case page) (link to slip op.), on Tuesday, June 20, 2017. A short opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.

Judge Ohlson writes for a unanimous court.

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CAAF decided the Army case of United States v. Herrmann, 76 M.J. 304, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.

CAAF then granted review of a single issue:

Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:

illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.

Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.

But CAAF is unconvinced and affirms the conviction.

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CAAF decided the Coast Guard case of United States v. Reese, 76 M.J. 297, No. 17-0028/CG (CAAFlog case page) (link to slip op.), on Wednesday, June 14, 2017. The court dismisses two charges after concluding that the conviction on the first (alleging sexual abuse of a child) was the product of an improper major change during the trial, and that the second charge failed to state an offense. The decision of the Coast Guard CCA is reversed and the case is remanded for reassessment of the sentence or a sentence rehearing.

Chief Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

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CAAF decided the certified Air Force case of United States v. Carter, 76 M.J. 293, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page) (link to slip op.), on Monday, June 5, 2017. In a short opinion issued less than a month after oral argument, CAAF agrees with the Air Force CCA’s “interpretation of its own holding . . . the AFCCA did not authorize a rehearing.” Slip op. at 4. The CCA’s decision dismissing the charges with prejudice is affirmed.

Judge Ryan writes for a unanimous court.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). The CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed. The case was remanded and two specifications under a new charge were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charge should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge. The Judge Advocate General of the Air Force then certified the case to CAAF challenging the CCA’s dismissal, and CAAF granted review of five additional issues.

Judge Ryan’s opinion, however, only discusses the certified issue, because CAAF finds that “under these circumstances, the convening authority was not authorized to order any further proceedings.” Slip op. at 2.

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CAAF issued the following summary disposition in United States v. Brantley, __ M.J. __, No.17-0055/AR (CAAFlog case page), on Thursday, June 1, 2017:

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On further consideration of the granted issue (76 M.J. 62 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Sager, 76 M.J. 158 (C.A.A.F. March 21, 2017).

In United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page), reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concluded that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reversed the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remanded the case for further consideration.

Brantley challenged the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching in a case where the prosecution’s argument focused on the alleged victim’s impairment. I concluded my argument preview with the following observation:

Yet I think there is also a strong argument that CAAF should summarily reverse and remand to the CCA for further consideration in light of Sager. There the CCA can also determine – based on a proper understanding of the law – whether it is personally convinced of Brantley’s guilt beyond a reasonable doubt (the test for factual sufficiency; a review available only at the CCA).

CAAF decided the Army case of United States v. Hendrix, 76 M.J. 283 No. 16-0731/AR (CAAFlog case page) (link to slip op.), on Thursday, June 1, 2017. Concluding that a voice lineup was so flawed as to render the result meaningless, CAAF finds that admission of evidence of the lineup caused prejudice because it was important for the prosecution. The court reverses the appellant’s conviction of sexual abuse of a child, authorizing a rehearing.

Judge Ohlson writes for a unanimous court.

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CAAF decided the Air Force case of United States v. Shea, 76 M.J. 277, No. 16-0530/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 30, 2017. Concluding that an appellant has no right to a CCA panel on remand that is composed of the same judges who considered the case on initial review, CAAF finds that there was no error in the changed composition of the panel in this case, and also that there is no evidence of unlawful influence in the circumstances leading to that change. The court affirms the decision of the Air Force CCA that reversed one of the convictions but affirmed the sentence as approved by the convening authority.

Judge Sparks writes for a unanimous court.

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CAAF decided the Air Force case of United States v. Oliver, 76 M.J. 271, No. 16-0484/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 24, 2017. Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, CAAF concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case. CAAF affirms the finding of guilty and the decision of the Air Force CCA.

Judge Sparks writes for the court joined by all by Judge Stucky, who concurs in the result but would have found the error was waived.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged abusive sexual contact by placing in fear in violation of Article 120(h) (2006) in that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – groped a female trainee “by placing her in fear of an impact on her military career through the use and abuse of [his] military rank, position, and authority.” Slip op. at 2 (quoting charge sheet). Oliver’s defense was that the touching occurred but was consensual.

The military judge acquitted Oliver of abusive sexual contact by placing in fear and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object. CAAF granted review to determine:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

In yesterday’s opinion, Judge Sparks grapples with the defense failure to object but ultimately applies last term’s decision in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), to hold that wrongful sexual contact is not a lesser included offense of abusive sexual contact. However, because Oliver’s “theory throughout the court-martial was that [the alleged victim] consented to the sexual activity. . . there is nothing to indicate material prejudice to Appellant’s substantial rights” to notice, and so the conviction is affirmed. Slip op. at 7.

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CAAF decided the Army case of United States v. Tucker, 76 M.J. 257, No. 17-0160/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2017. With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard. CAAF reverses the CCA’s decision and remands for a new Article 66 review “to evaluate this case in light of Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page].”

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