CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. McDonald, __ M.J. __, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:

As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.

Slip op. at 8 (citation omitted).

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On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

(paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

CAAF decided the Air Force case of United States v. Hamilton, __ M.J. __, No. 18-0135/AF (CAAFlog case page) (link to slip op.), on Thursday, February 28, 2019. Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – the court avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) is evidence that is subject to any of the Military Rules of Evidence. Nevertheless, despite finding error, CAAF finds no prejudice and it affirms the findings ans sentence as affirmed by the Air Force CCA.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Hamilton pleaded guilty to wrongful possession and distribution of child pornography, and a military judge sentenced him to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. During the sentencing phase of the court-martial, the prosecution offered three exhibits as either evidence in aggravation (admissible under R.C.M. 1001(b)(4) (2016)) or statements of victims (admissible under R.C.M. 1001A (2016)). The exhibits were:

Prosecution Exhibit 4: A statement from the child (identified as B) depicted in some of the images possessed by Hamilton, and also a statement from her mother.

Prosecution Exhibit 5: A video of a speech given by B at a conference about crimes against children.

Prosecution Exhibit 6: A written statement from another child (identified as J) depicted in other images possessed by Hamilton.

Hamilton’s defense counsel objected but the military judge overruled the objection. His ruling, however, did not clearly identify the basis for admission of the exhibits. Hamilton renewed his objection on appeal, but the Air Force CCA rejected it. The CCA concluded that the exhibits were admissible as statements of a victim under R.C.M. 1001A and that such statements “are not evidence” and so the Military Rules of Evidence “do not apply” to them. United States v. Hamilton, 77 M.J. 579, 584–86 (A.F. Ct. Crim. App. 2017) (analyzed here).

CAAF then granted review of two issues:

I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?

II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.

Finding that the military judge erred in admitting the exhibits under any rule, CAAF does answer not address whether a R.C.M. 1001A statement is evidence subject to the Military Rules of Evidence (though it does give some hints) because to decide that question “would constitute an advisory opinion.” Slip op. at 11.

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CAAF decided the Army case of United States v. Kohlbek, __ M.J. __, No. 18-0267/AR (CAAFlog case page) (link to slip op.), on Monday, February 25, 2019. Reviewing the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations, CAAF concludes that the prohibition is not so broad. In this case, however, the military judge’s ruling prohibiting the defense from introducing evidence that a confession was preceded by a polygraph is harmless error because of the strength of the other evidence of guilt.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Specialist (E-4) Kohlbek was tried by a general court-martial composed of a military judge alone. He pleaded guilty to three specifications of assault consummated by a battery upon a child under sixteen years old, in violation of Article 128, as lesser included offenses of sexual abuse of a child in violation of Article 120b. The prosecution then proceeded to trial on the greater offenses, resulting in Kohlbek’s conviction of four specifications of sexual abuse of a child. The military judge sentenced Kohlbek to confinement for 15 months, reduction to E-3, and a bad-conduct discharge.

Kohlbek’s convictions relate to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and she spent a night at Kohlbek’s home. While she was there, Kohlbek got drunk, entered the room where AH was sleeping, and sexually touched AH. AH immediately reported the incident and military police apprehended Kohlbek.

Kohlbek did not deny wrongdoing (rather, he pleaded guilty to assaulting the girl), but he did claim no memory of the incident. In turn, Kohlbek’s defense counsel asserted that Kohlbek was too drunk to form the specific intent required for the charged sexual offense. But the defense had a problem: Kohlbek confessed. Specifically, Kohlbek agreed to be questioned by military investigators and he agreed to take a polygraph examination. After the polygraph, investigators told Kohlbek (quite predictably) that he failed the polygraph and they continued to interrogate him, eventually leading Kohlbek to say:

Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just get me out of here.

Slip op. at 4 (quoting CCA opinion). Kohlbek’s confession followed. Kohlbek’s defense counsel tried to undermine the truthfulness of the confession by showing that it was given after a polygraph and under duress. But the military judge prohibited the defense from doing so based on the prohibition in Mil. R. Evid. 707(a) that states:

Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

Kohlbek challenged that ruling on appeal, asserting that the rule is not so broad that it prohibits any mention of a polygraph whatsoever and also that if it is so broad then it unconstitutionally infringes on the right to present a defense. In yesterday’s opinion CAAF agrees that the rule is not so broad (and deliberately avoids the constitutional question).

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CAAF decided the Army case of United States v. Smith, __ M.J. __, No. 18-0211/AR (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. In a short, per curiam opinion, the court finds any error waived.

Warrant Officer One (W-1) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with those products. The authorization was granted, several other devices were seized, and all of the devices were sent for examination. After some forensic wizardry, investigators discovered incriminating videos on the iPhone.

Smith’s defense counsel moved to suppress the videos at trial, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was denied, the videos were admitted, and Smith was convicted. Smith renewed the suppression issue on appeal, but asserted a new basis: that investigator unlawfully used the other devices to gain access to the contents of the iPhone. The Army CCA refused to consider Smith’s new argument because it wasn’t presented to the trial military judge, but the CCA also held that the good faith exception applied. CAAF then granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Those issue have complex wording but present two relatively-straightforward questions: First, whether the good faith exception to the warrant requirement applies (an issue more directly presented in a different case – United States v. Perkins, No. 18-0365/MC (CAAFlog case page) – that was argued on the same day as Smith). Second, whether waiver applies.

When an issue is waived there is no error to correct on appeal, and “waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page) (marks and citations omitted). Smith involved the possibility of waiver by operation of law because Mil. R. Evid. 312(d)(2)(A) requires a motion to suppress seized evidence to be made prior to entry of pleas and CAAF’s precedent states that such a motion must identify the particular reasons why the evidence should be suppressed (with unidentified reasons waived). That precedent includes an opinion from just 11 months ago, in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), in which CAAF applied waiver in an almost identical situation. Robinson’s trial defense counsel moved to suppress text messages seized from Robinson’s cell phone on the basis that Robinson’s consent to the seizure was involuntary, but then Robinson’s appellate defense counsel argued that the messages should have been suppressed because the seizure exceeded the scope of Robinson’s consent. Both the Air Force CCA and CAAF applied waiver to the basis raised on appeal, with Judge Ohlson writing that:

We note that the issue of waiver under M.R.E. 311(d)(2) was previously reached. United States v. Stringer, 37 M.J. 120, 125 (C.M.A. 1993) (“In view of the absence of a particularized objection at trial … we will consider the issue waived.”); see also id. at 132 (Wiss, J., concurring in the result) (finding that waiver “makes good sense” under M.R.E. 311(d) when defense counsel’s objection to issues other than that raised on appeal prevented appellate issue from being litigated at trial and may have precluded prosecution from submitting evidence which would have clarified matter).

Robinson, 77 M.J. at 307 n.6 (omission in original).

Nevertheless, in Smith the Army Government Appellate Division conceded that waiver does not apply. CAAF, however, rejects that concession:

In light of our unambiguous holding in Robinson, we reject the Government’s concession that “[w]here [an] appellant moves to suppress evidence under M.R.E. 311 but fails to articulate a possible ground upon which to suppress the evidence, this forfeits (but does not waive) the issue.” While the Government correctly notes that “this Court has found that there are instances where the plain language of a military rule for court-martial or rule of evidence reads ‘waiver’ but may be interpreted as ‘forfeiture,’ ” it somehow missed the fact that we have already decided that this is not one of those instances. Given the parties’ confusion, we take this opportunity today to reiterate that failure to object under M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77 M.J. at 307.

In the instant case, it is indisputable that Appellant failed to raise the use of his computer as a “key” to open his iPhone as a possible ground for suppression in either his written motion to suppress or at the suppression hearing. Appellant concedes this point. Thus, he waived the issue.

Slip op. at 2-3 (modifications in original).

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Briggs, __ M.J. __, No. 16-0711/AF (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, CAAF reverses the appellant’s conviction of rape and dismisses the charge.

Judge Maggs writes for a unanimous court.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

At the time of Briggs’ trial, CAAF’s precedent held that there was no statute of limitations for the offense of rape. As a result, Briggs did not raise a statute of limitations defense at trial. On appeal, however, Briggs did raise the issue, but the Air Force CCA refused to consider it because Briggs had not raised it at trial. The CCA affirmed the findings and sentence, and CAAF denied review of Briggs’ claim that he received ineffective assistance of counsel when his defense counsel failed to raise the statute of limitations at trial. But Briggs’ case became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may also serve as an assigned judge of the Court of Military Commission Review. And while SCOTUS was considering Ortiz, CAAF decided Mangahas.

Mangahas reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult, clarifying that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was just five years (until Congress changed the law in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

CAAF’s decision in Mangahas gave life to the the statute of limitations issue in Briggs, and SCOTUS remanded the case for review in light of Mangahas. CAAF then agreed to consider two issues:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In today’s decision CAAF holds that the 2006 change to the statute of limitations (Article 43) does not apply retroactively, meaning that the statute of limitations applicable in Briggs’ case is just five years. CAAF also holds that a statute of limitations defense can be raised for the first time on appeal, though when that happens the issue is tested for plain error. But because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the error plain and Briggs’ conviction is reversed.

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CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.

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

Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), however that person must be reasonably available as determined by service regulations (that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) Buyske and Lieutenant Commander (LCDR) Gross. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case and four issues to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.

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CAAF decided the Navy case of United States v. Forbes, __ M.J. __, No. 18-0304/NA (CAAFlog case page) (link to slip op.), on February  7, 2019. The court unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

Judge Sparks writes for a unanimous court.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) in violation of Article 120(b)(1)(B) (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”).

74 M.J. at 68. The Navy-Marine Corps CCA applied Gutierrez to affirm Forbes’ guilty pleas in a published decision. United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). CAAF then granted review of one issue:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

In today’s opinion Judge Sparks clearly explains that the guilty plea in this case is entirely proper because “true consent must be informed,” slip op. at 4 n.4, and therefore:

Appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse.

Slip op. at 4.

Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” CAAF’s holding in this case will almost certainly apply to that new offense.

Case Links:
NMCCA opinion
Blog post: NMCCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N.M. App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Hale, __ M.J. __, No. 18-0162/AF (CAAFlog case page) (link to slip op.), on February 6, 2019. Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

Judge Sparks writes for the court joined by all but Judge Ohlson, who dissents in part (disagreeing with the core holding of the majority opinion).

CAAF then granted review of two issues and specified a third:

Granted Issues:
I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?

II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.

Specified Issue:
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.

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CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training

Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.

The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).

Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.

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CAAF decided the Army case of United States v. Nicola, 78 M.J. 223, No. 18-0247/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 9, 2019. Emphasizing that an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and that such disbelief may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

Judge Maggs writes for a unanimous court.

CAAF granted review of a single issue:

Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.

The offense of indecent viewing occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a). The statute defines private area as the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. A conviction is legally sufficient if, considering all of the evidence in the light most favorable to the prosecution, a rational fact-finder could have found all essential elements of the offense beyond a reasonable doubt.

Staff Sergeant (E-6) Nicola was convicted of violating a general regulation, abusive sexual contact, and indecent viewing, by a general court-martial composed of officer members, and he was sentenced to reduction to E-1 and a bad-conduct discharge. Nicola’s convictions relate to his conduct with a high-intoxicated, junior female soldier, identified in CAAF’s opinion as Corporal AA.

Corporal AA testified during Nicola’s trial, and Nicola testified in his own defense. Their stories conflicted. Corporal AA claimed that Nicola sexually assaulted her in the shower in her barracks room (he was acquitted of an offense related to that alleged sexual assault). Nicola claimed that he only briefly saw Corporal AA in her bra as she undressed herself to get into the shower, and then that he later looked at her in the shower only to check on her welfare. Nicola focused on his version of events to claim that his conviction of indecent viewing is legally insufficient, while the Army Government Appellate Division asserted that Corporal AA’s version of events supports Nicola’s indecent viewing conviction (even though Nicola was acquitted of the related sexual assault allegation) and also that the members were free to disbelieve Nicola’s version of events and conclude that – even if he did not do everything Corporal AA claimed he did – he did more than he admitted to doing.

CAAF agrees with the Government Division, with Judge Maggs explaining that the court “find[s] the evidence legally sufficient to support each of the Government’s theories.” Slip op. at 6. The primary reason for that finding is Nicola’s testimony in his own defense.

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CAAF decided the Air Force case of United States v. King, 78 M.J. 218, No. 18-0288/AF (CAAFlog case page) (link to slip op.), on Friday, January 4, 2019. Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

Chief Judge Stucky writes for a unanimous court.

Airman First Class (E-3) King was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of attempting to view child pornography, one specification of viewing child pornography, and one specification of violating a general regulation. He was sentenced to confinement for nine months, reduction to E-1, and a dishonorable discharge. The Air Force CCA summarily affirmed the convictions.

The evidence against King included an admission by King that he searched for and looked at naked images of young girls, and it also included the results of a forensic examination of King’s electronic devices that revealed thousands of offensive images and three specific images of child pornography. Those three images were found on King’s home computer, but in hard-to-access places: two were found in a web browser’s cache (a storage location to make repeat browsing faster) and one was found in unallocated space (likely meaning that it was a deleted item). King was convicted of knowingly and wrongfully viewing those three specific images, and CAAF granted review of a single issue challenging the sufficiency of that conviction in light of the location of the images:

The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?

CAAF finds the evidence legally sufficient, but Chief Judge Stucky’s opinion begins with the caveat that it does so, “given the very low threshold required to sustain a conviction for legal sufficiency.” Slip op. at 1.

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CAAF decided the Army case of United States v. Tucker, 78 M.J. 183, No. 18-0254/AR (CAAFlog case page) (link to slip op.), on November 29, 2018. In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the Army Court erred in holding that the minimum mens rea required under clauses 1 and 2 of Article 134, UCMJ, to separate wrongful from innocent conduct is simple negligence.

Private (E-1) Tucker pleaded guilty to multiple offenses, including a novel violation of Article 134 based on providing alcohol to a minor. During the plea inquiry Tucker told the military judge that “he did not know—and had no reason to believe—that [the recipient] was under the age of twenty-one.” Slip op. at 3. “The military judge eventually concluded that the mens rea for the charged offense was negligence . . . [and] the military judge accepted Appellant’s plea and entered a finding of guilty for the putative offense of negligently providing alcohol to an underage individual in violation of Article 134, UCMJ.” Slip op. at 3-4.

The Army CCA affirmed Tucker’s conviction in a published decision, concluding that the word neglects in Article 134 states a negligence standard. United States v. Tucker, 75 M.J. 872, 875 (A. Ct. Crim. App. Oct. 28, 2016). CAAF granted review, heard oral argument, and then reversed the CCA with a per curiam decision. United States v. Tucker, 76 M.J. 257, 258 (C.A.A.F. May 23, 2017) (CAAFlog case page). CAAF concluded that “the term ‘neglects’ simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform. . . . [it] has no connection to the mens rea requirement that the government must prove under the statute.” 76 M.J. at 258. Mens rea then became the #8 Military Justice Story of 2017.

On remand the Army CCA again affirmed Tucker’s conviction, with another published decision holding that Tucker’s “admitted mens rea of simple negligence, when combined with the requirement that [his] conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted).

CAAF now reverses that decision too, and it reverses Tucker’s conviction, with Judge Ohlson explaining that “it is inappropriate to infer a negligence mens rea ‘in the absence of a statute or ancient usage.'” Slip op. at 5 (quoting United States v. Manos, 8 C.M.A. 734, 735, 25 C.M.R. 238, 239 (1958)).

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CAAF decided the Army case of United States v. Criswell, 78 M.J. 136, No. 18-0091/AR (CAAFlog case page) (link to slip op.), on November 16, 2018. The court granted review to determine whether the military judge erred by allowing the alleged victim to identify Criswell as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive. CAAF narrowly affirms the military judge ruling and Criswell’s convictions, with the majority applying a highly-deferential standard of review that focuses on Criswell’s appellate-stage objections to the military judge’s ruling. The dissenters, however, conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

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

CAAF granted review of a single issue:

Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

A general court-martial composed of a military judge alone convicted Specialist (E-4) Criswell, contrary to his pleas of not guilty, of one specification of making a false official statement, two specifications of abusive sexual contact, one specification of assault consummated by battery, and one specification of indecent language in violation of Articles 107, 120, 128, and 134. Criswell was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge.

Criswell’s convictions relate to an allegation by Specialist (SPC) AM that she was verbally harassed and sexually touched on two separate occasions during a large party at a convention center. SPC AM is a white female; her assailant was a black man. The lighting was poor during both encounters and SPC AM did not know her assailant, but she saw his face well enough to provide a general description to another soldier at the party and based on that description the other soldier suspected Criswell. Military criminal investigators showed SPC AM a single picture of Criswell the next day, and she identified him at that time as her assailant “immediately and without hesitation.” Slip op. at 7 (quoting military judge’s findings of fact). Testifying in court, SPC AM again identified Criswell as her assailant. The military judge did not allow the prosecution to introduce SPC AM’s out-of-court identification of Criswell, but he allowed the in-court identification over a defense objection that challenged it as the unreliable product of the actions of the military investigators.

Considering those facts, all of CAAF’s judge’s agree that eyewitness identifications can lead to injustice. Judge Maggs observes for the majority that “eyewitness identifications are problematic in any criminal justice system.” Slip op. at 2. Judge Ohlson observes for the dissenters that “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.” Diss. op. at 11 (quoting United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006)). But CAAF splits over how to review the eyewitness identification allowed in this case. While the ordinary standard of review for rulings admitting evidence is abuse of discretion – where findings of fact are reviewed for clear error and conclusions of law are reviewed de novo – the majority narrows that approach, with Judge Maggs explaining:

Applying this standard in this case, we do not undertake a de novo analysis of whether the in-court identification should have been admitted. Instead, we focus on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.

Slip op. at 7 (emphasis added). The majority then addresses the challenges raised in Criswell’s “brief and reply brief,” slip op.at 8, and during oral argument, slip op. at 8-9 (citing oral argument recording). See also slip op. at 11 (excusing the military judge’s failure to specifically address a factor because “Appellant does not contend, either in his briefs or his oral argument[,] that the military judge misunderstood this aspect [of the law]”). The dissenters, however, make no reference to Criswell’s briefs or to the oral argument while concluding that “the military judge committed three errors in this case.” Diss. op. at 4.

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CAAF decided the Army case of United States v. Eugene, 78 M.J. __, No. 18-0209/AR (CAAFlog case page) (link to slip op.), on Monday, October 29, 2018. With a short opinion, CAAF holds that the question of whether an accused revoked consent to a search is a question of fact, not a question of law. Then, considering the deference generally afforded to a military judge’s factual findings, CAAF finds no error in the military judge’s finding that Eugene did not revoke the consent his wife gave to law enforcement to search Eugene’s phone. CAAF affirms the findings, sentence, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

CAAF answers the first issue in the negative and does not reach the second issue.

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