CAAFlog » CAAF Opinions

On Wednesday CAAF issued a short, per curiam opinion in the Air Force case of United States v. McGriff, __ M.J. __, No. 19-0206 (CAAFlog case page) (link to slip op.). The opinion is puzzling. CAAF did not grant review in McGriff, and the opinion merely explains that the denial of the review “carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the [law].” Slip op. at 1-2. In other words, CAAF has no opinion about the case.

The Air Force CCA’s decision in the case is available here. McGriff was an Air Force Staff Sergeant (E-5) who pleaded guilty in 2017 to sexual abuse of a child and was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge. McGriff was then confined at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. While confined, McGriff participated in numerous sexual acts with a member of the USDB staff, an Army Staff Sergeant (E-6) identified by the CCA as SSG TH. Sexual acts between USDB staff members and prisoners are, of course, strictly prohibited. After the sexual acts, McGriff tested positive for gonorrhea, a disease that SSG TH later admitted to criminal investigators he had in the past. SSG TH was also HIV-positive, a fact he did not disclose to McGriff.

On appeal, McGriff asserted that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55 of the UCMJ, or that the sexual acts with the USDB staff member otherwise justify reduction of his sentence as a matter of sentence appropriateness under Article 66 (an option affirmed by CAAF in United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page)). A three-judge panel of the Air Force CCA agreed, finding a violation of both the Eighth Amendment and Article 55, and also finding that relief is warranted under Article 66, and it reduced McGriff’s sentence by one year. McGriff then petitioned CAAF for review of a single issue:

Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.

The wording of the issue is a little puzzling because the CCA didn’t actually conduct a review of prejudice from the cruel and unusual punishment. The only use of the term prejudice in the CCA’s opinion involves a separate issue (post-trial delay), and the CCA granted relief for the punishment after applying a three-part test articulated by CAAF in United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), and based on Farmer v. Brennan, 511 U.S. 825 (1994), that does not require a showing of prejudice. Furthermore, a quick review of the law suggests that the Eighth Amendment violation might be inherently prejudicial. See In re Hernandez-Miranda, No. 16-12893-J, 2016 U.S. App. LEXIS 13205, at *14 (11th Cir. June 28, 2016) (available here) (Martin, J., dissenting). But it’s likely that what McGriff wanted was for CAAF to grant review and either give him more relief (a greater reduction of his sentence) or order the CCA to apply some set of factors that would lead to more relief.

CAAF, however, denies review and issues the per curiam opinion that states, in its entirety:

On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition. However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case).

Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value).

(paragraphing added) (footnote omitted).

It’s hard to understand why CAAF writes that now, in this case, and this way (and I’ve spent some time enlarging the forehead-shaped dent in my desk trying to figure it out). CAAF has periodically reminded counsel during oral arguments that a denial of review is not an endorsement of the opinion below. One recent and notable example was in the oral argument of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016), and the court’s subsequent decision in Hills (an Army case) was a reversal of the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). Similarly, CAAF’s recent decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), shows that court will reverse even oft-applied, decades-old precedent when the circumstances are right.

But McGriff doesn’t present any obvious challenge to any precedent, and even if the CCA’s finding of cruel and unusual punishment is wrong, Gay makes it clear that the court has plenary authority to reduce the sentence under Article 66 anyway. Accordingly, all CAAF’s denial of review really does is deprive the Supreme Court of jurisdiction to consider a petition for certiorari. See 28 U.S.C. § 1259.

CAAF decided the Army case of United States v. Gonzales, __ M.J. __, No. 18-0347/AR (CAAFlog case page) (link to slip op.), on Friday, June 7, 2019. Analyzing the version of Article 120 effective from 2007-2012, the court holds that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child. Nevertheless, reviewing the appellant’s conviction of the lesser offense for plain error (because there was no objection at trial), CAAF finds that the error is not plain or obvious because the law was unsettled, and the court affirms the conviction.

Judge Maggs writes for a unanimous court.

Specialist (E-4) Gonzales was convicted by a general court-martial composed of a military judge alone of aggravated sexual contact with a child, aggravated sexual abuse of a child, indecent liberty with a child, and child endangerment, and sentenced to confinement for 22 years, reduction to E-1, total forfeitures, and a dishonorable discharge. CAAF’s review involves only the conviction of aggravated sexual contact with a child. Gonzales was actually charged with the offense of rape of a child, with a specification that alleged that he:

engage[d] in a sexual act, to wit: penetrating, with his penis, the vulva of Miss AP, a child who had not attained the age of 12 years.

Slip op. at 9 (marks omitted). The evidence at trial, however, did not prove the element of penetration, and the military judge acquitted Gonzales of rape but convicted him of aggravated sexual contact, ostensibly as a lesser included offense. The two offenses are different, in that rape of a child (in violation of Article 120(b) (2006)) requires a sexual act (potentially without any specific intent), while aggravated sexual contact requires only sexual contact but with specific intent. The defense did not object when the military judge announced the findings, and CAAF eventually granted review to determine:

Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Applying both versions of the elements test outlined in United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018) (CAAFlog case page), Judge Maggs explains that the statutory elements of aggravated sexual contact with a child are not necessarily included in the statutory elements of rape of a child, and that the charge sheet did not provide notice of the different elements of the sexual contact offense. Accordingly, the military judge erred in convicting Gonzales of aggravated sexual contact with a child. The error, however, was not plain or obvious because “it was subject to reasonable doubt both at the time of trial and on appeal,” slip op. at 10, and so – because Gonzales failed to object at trial – he gets no relief.

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CAAF decided the Army case of United States v. Gleason, __ M.J. __, No. 18-0305/AR (CAAFlog case page) (link to slip op.), on June 6, 2019. The court rejects a novel specification under Article 134, concluding that it is barred by the prohibition in the Manual for Courts-Martial against charging a novel specification when the offensive conduct is already covered by an offense enumerated in the Manual. CAAF reverses the decision of the Army CCA, dismisses the specification at issue, sets aside the sentence, and remands for further proceedings.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan and Judge Maggs both dissent, each filing an opinion.

CAAF granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Article 134 criminalized three categories of conduct: “[1] all disorders and neglects to the prejudice of good order and discipline in the armed forces, [2] all conduct of a nature to bring discredit upon the armed forces, and [3] crimes and offenses not capital.” 10 U.S.C. § 934. The President – exercising his rulemaking authority under Article 36 – enumerated in the Manual for Courts-Martial a wide variety of offenses that may be charged as violations of Article 134 (like obstruction of justice, child pornography offenses, and extramarital sexual conduct (formerly adultery)). Outside of those enumerated offenses, however, servicemembers may also be charged with other, novel, violations of Article 134, so long as the conduct falls into one of the three statutory categories. But the President also prescribed three specific conditions for how such novel specifications may be used:

  • The first is the preemption doctrine, which states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page).
  • The second is that “a capital offense may not be tried under Article 134.” ¶ 91.c.(5)(b), Part IV, Manual for Courts-Martial (2019 ed.).
  • The third – and the one at issue in this case – is the provision that “if conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.” ¶ 91.c.(6)(a), Part IV, Manual for Courts-Martial (2019 ed.) (formerly ¶ 60.c.(6)(a)).

Two years ago, United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF interpreted that third condition as flatly prohibiting use of a novel specification to allege an offense under Article 134 where the offense is already listed inside the Article’s framework. Reese involved a specification that functionally alleged the offense of obstruction of justice – as enumerated by the President under Article 134 – without requiring the prosecution to prove two of the four elements of obstruction. Reese was quickly applied in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), to reverse two novel specifications that were encompassed by the enumerated offense of indecent language.

Now, in Gleason, CAAF applies Reese to a specification that alleged that:

[Appellant] knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police and that such 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.

Slip op. at 4 (modifications in original). The majority finds that the conduct at issue “falls squarely within the President’s explanation of the obstruction of justice offense.” Slip op. at 5. The dissenters, however, would hold that “the novel specification here is not contained within the elements of the listed Article 134, UCMJ, [offense] of obstruction of justice.” Diss. op. of Ryan, J., at 3 (citing Diss. op. of Maggs, J. at 1-4).

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CAAF decided the Army case of United States v. Tovarchavez, __ M.J. __, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.

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

CAAF granted review of a single issue:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object to the instruction. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.

Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).

Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies: the error must be harmless beyond a reasonable doubt and an “error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).

Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.

Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:

the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.

United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):

Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .

But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.

Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.

In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.

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CAAF decided the Army case of United States v. Lewis, __ M.J. __, No.19-0109/AR (CAAFlog case page) (link to slip op.), on Thursday, May 30, 2019. In this interlocutory appeal of a military judge’s ruling that suppressed three statements made by the accused, CAAF affirms the decision of the Army CCA that reversed the military judge’s ruling as to the third (and most damaging) statement, allowing its admission into evidence at the accused’s court-martial.

Chief Judge Stucky writes for all but Judge Ryan, who concurs with the majority’s opinion in full but writes separately in order to express skepticism about CAAF’s jurisdiction to grant an accused’s petition for review of a prosecution interlocutory appeal.

CAAF granted review of one issue:

Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Specialist (E-4) Lewis is charged with the sexual assault of a child and faces trial by general court-martial. Prior to being charged, Lewis was interrogated by Army criminal investigators on three occasions. On the first occasion the lead investigator – identified in the opinion as Investigator Lizivette Delgado, even though she “has since changed her last name,” slip op. at 3 n.3 – deliberately did not give Lewis the mandatory rights advisory because she “feared that [Lewis] might invoke his Article 31(b) rights if she brought them to his attention.” Slip op. at 3-4 (citation omitted). Lewis made some admissions during that first interrogation. One month later he was interrogated again but by a different agent who promptly gave a rights warning. Lewis waived his rights and made more admissions. Finally, one month after the second interrogation Lewis was interrogated by a third agent, warned about his rights, waived his rights, agreed to take a polygraph examination, and:

became “overwhelmingly sad and then admitted to penetrating Miss ZC’s vagina with his finger after she had told him no.” He stated he had done this in an attempt to convince Miss ZC to have sex with him.

Slip op. at 5 (quoting United States v. Lewis, 78 M.J. 602, 608 (A. Ct. Crim. App. 2018)).

Lewis moved to suppress the fruits of all three interrogations at trial and the military judge agreed, concluding that the prosecution failed to prove that any of Lewis’ statements were voluntary. The prosecution appealed that ruling under Article 62 for the second and third interrogations, and the Army CCA agreed in part. The CCA affirmed the suppression of the second interrogation but reversed the suppression of the third interrogation, concluding that the military judge made an erroneous finding of fact and applied the wrong law. Lewis then petitioned CAAF for review of that decision.

Chief Judge Stucky’s opinion conducts a necessarily fact-specific analysis of the issue to reach the same conclusions as the Army court: The military judge made a clearly-erroneous finding of fact (regarding whether Lewis suffered from adjustment disorder at the time of the third interrogation based on a diagnosis of that condition six months after the interrogation), slip op. at 10-11, and the military judge “erred by failing to distinguish between the three interrogations,” slip op. at 13. Accordingly, CAAF holds that the suppression of the fruits of the third interrogation was an abuse of discretion.

Judge Ryan’s separate opinion poses no challenge to Chief Judge Stucky’s decision in this particular case, however it lobs a firebomb into CAAF’s jurisprudence involving interlocutory appeals. She writes:

I write separately only to express my skepticism that an accused may permissibly appeal an adverse ruling of a Court of Criminal Appeals (CCA) where the case came before the CCA as an interlocutory appeal by the government under Article 62, UCMJ, 10 U.S.C. § 862. I fully recognize that this Court has long considered petitions in this posture without question, even rarely granting and deciding cases in favor of the accused. See, e.g., United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). Nevertheless, this practice runs contrary to the well-established principles guiding criminal appeals.

. . . We should therefore be hesitant to extend the purview of interlocutory appeals under Article 62, UCMJ, absent compelling justification.

Con. op. at 1. What follows is a truncated analysis of Article 62 (that authorizes interlocutory appeals by the prosecution only “under the strict requirements specified by Congress,” con. op. at 4) and the observation that “there is no reason Article 62, UCMJ, must or should be read to give an accused the opportunity to appeal.” Con. op. at 2.

Judge Ryan’s belief that Article 62 should be read narrowly is nothing new; she authored a dissenting opinion in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that concluded that CAAF lacked jurisdiction to review any interlocutory appeal. Her decision to question the court’s jurisdiction in this case, however, where the Gov’t Division’s brief conceded that the court has jurisdiction (and the Division was not asked about that concession during oral argument), is hard to understand in light of recent events. Specifically, just 15 months ago, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF not only granted review of an accused’s petition in an interlocutory case, but it decided the case in favor of the accused on an issue other than the one specified in the original grant and presented at oral argument. CAAF’s decision in Mangahas was a surprising reversal of decades of precedent, had an immediate effect on a number of relatively high-profile cases, and was the #3 Military Justice Story of 2018.

The author of that unanimous opinion? Judge Ryan.

Furthermore, Judge Ryan belittles CAAF’s decision to grant review:

This case is a perfect example of needless delay and interruption. There is no colorable claim that Appellant was entitled to relief, as the CCA clearly explained. We nonetheless interrupted the trial—at which Appellant may still yet be acquitted—for an additional period of time only to conclude that the CCA was precisely correct.

Con. op. at 4-5 (emphasis added). CAAF has discretionary jurisdiction and it rejects the vast majority of petitions for review. The court rejects so many petitions that it didn’t fill its oral argument calendar this term. Or last term. Or the term before that. Yet it granted review in this case. Judge Ryan’s castigation of this appeal as “a perfect example of needless delay and interruption,” and as presenting “no colorable claim” suggests that the court was either bamboozled into granting review, or that it granted review in this case – and maybe denied review in other cases – for the wrong reasons.

Case Links:
ACCA opinion (78 M.J. 602)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Marine Corps case of United States v. Hutchins, __ M.J. __, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

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CAAF decided the Army case of United States v. Harris, __ M.J. __, No.18-0364/AR (CAAFlog case page) (link to slip op.), on May 16, 2019. The court finds that the military judge rightly denied 291 days of credit for civilian pretrial confinement, affirming the published decision of the Army CCA.

Judge Ryan writes for a unanimous court.

In 2013, Staff Sergeant (E-6) Harris was arrested by Florida authorities and charged with 44 counts of possessing child pornography. He was released on bond pending trial. He absconded, fleeing to Cambodia.

Eventually, Harris surrendered and was confined by Florida authorities (not at the request of military authorities), and Florida added a felony charge of failure to appear. Ultimately, however, the state prosecutor elected not to pursue a child pornography conviction because the state was unable to secure a key witness. Instead, Harris pleaded no contest to the failure to appear and was sentenced to confinement for 364 days. But by that point, Harris had spent 655 days in pretrial confinement; 291 days more than his state sentence.

After the state completed the prosecution, the Army took its turn. Harris was charged with possession of child pornography and desertion, eventually pleading guilty to both and receiving a sentence of confinement for five years, reduction to E-1, and a bad-conduct discharge. The military judge ordered that Harris receive 191 days of confinement credit for time spent in military pretrial confinement, but he denied Harris’ request for an additional 291 days of credit for the time spent in civilian pretrial confinement in excess of the state sentence. The military judge did so after concluding that those days of confinement were for the charge of failure to appear that occurred after Harris’ desertion and possession of child pornography, meaning that they were ineligible for credit under the applicable DoD regulation. On appeal, the Army CCA agreed with the military judge. CAAF then granted review of one issue:

Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Judge Ryan’s opinion for the unanimous CAAF is short and to the point, concluding:

The record provides adequate support for [the military judge’s] determination. First, Appellant was only placed in pretrial confinement after he fled to Cambodia while out on bond and was charged with failure to appear after his return to the United States. Second, Appellant was not confined for the child pornography charges prior to his flight to Cambodia. It seems perfectly accurate to say that Appellant was placed in confinement because he fled the country and failed to appear at his hearing and not because he possessed child pornography. The record thus supports the military judge’s finding that Appellant’s confinement in Florida was “for” his failure to appear. Having determined that the military judge’s factual finding was not clearly erroneous, we find no error in his application of the law to that factual finding. The denial of the 291 days of civilian pretrial confinement credit aligns squarely with the plain language of DoDI 1325.07 encl. 2, para. 3.c.

Slip op. at 6 (citation omitted).

Case Links:
ACCA opinion (78 M.J. 521)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Meakin, __ M.J. __, No. 18-0339/AF (CAAFlog case page) (link to slip op.), on May 7, 2019. Considering the appellant’s indecent online communications with others (one of whom was an undercover law enforcement agent), the court holds that the communications were obscene speech that is not protected by the First Amendment, that they are not protected by any other liberty interest, and that the unique nature of the offense of conduct unbecoming an officer and a gentleman defined by Article 133 provides a “more exacting standard of conduct [that] can be traced back at least to the days of knighthood where knights were held to a higher standard of conduct than their fellow countrymen in the Court of Chivalry.” Slip op. at 13 (marks and citation omitted). Accordingly, CAAF affirms the two charges and seventeen specifications of conduct unbecoming an officer and a gentleman, in violation of Article 133, and the sentence of confinement for 19 months and 15 days, total forfeitures, and a dismissal.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Lieutenant Colonel (O-5) Meakin was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of seventeen specifications of conduct unbecoming an officer and a gentleman, and sentenced to confinement for 20 months, total forfeitures, and a dismissal. The convening authority reduced the confinement by 15 days. Meakin’s convictions were based on his online chats with unidentified individuals about sexual fantasies involving children. Separate from his court-martial prosecution, Meakin also pleaded guilty in federal court to knowingly accessing child pornography.

Meakin argued at the court-martial that the charged violations of Article 133 must be dismissed because his communications were private and protected by the First Amendment, and Meakin renewed that argument on appeal before the Air Force CCA and at CAAF. It is thoroughly rejected.

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CAAF decided the certified Marine Corps case of United States v. Perkins, __ M.J. __, No. 18-0365/MC (CAAFlog case page) (link to slip op.), on April 23, 2019. Selectively reading Mil. R. Evid. 311 (which codifies various rules for evidence obtained as the result of an unlawful search or seizure), a majority of the court holds that Mil. R. Evid. 311(c)(3)(B) does not mean what it says, repudiating the recent unanimous decision in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page), that applied the rule as written, and reinvigorating the not-quite-unanimous United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001), that held that “the phrase ‘substantial basis’ has different meanings, depending on the issue involved.” Accordingly, assuming that the search authorization in this case was issued without a substantial basis for finding probable cause, CAAF nevertheless applies the good faith exception even though Mil. R. Evid. 311(c)(3)(B) requires more, affirming the published decision of the Navy-Marine Corps CCA.

Judge Maggs writes for the court joined by all but Judge Ohlson, who dissents.

The Judge Advocate General of the Navy certified two issues, both on behalf of the defense:

I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Sergeant (E-5) Perkins was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to commit larceny and violation of a general order, and sentenced to reduction to E-1 and a bad-conduct discharge. The conspiracy conviction was supported by evidence of stolen military property found in the garage of Perkins’ on-base home. CAAF’s review focuses on the search authorization that gave military investigators access to that garage.

Perkins was in a relationship with a woman who alleged to military law enforcement that Perkins extorted her with nude photos and videos taken without her consent. She told military investigators that she never actually saw Perkins take a picture or video of her, but she said she once saw him use his cell phone during sexual activity and she also claimed that he had other electronic devices in his home capable of storing pictures and videos. Based on that information, and knowing that Perkins was out of town and had his cell phone with him, military investigators sought and received a search authorization to search Perkins’ home for other devices. Perkins’ commanding officer issued the authorization and agents searched Perkins’ home where they found no illicit pictures or videos, but instead found military property that eventually led to Perkins’ conviction of the conspiracy and orders violation.

At trial, Perkins moved to suppress the evidence seized from his home on the basis that the search authorization lacked probable cause, was unconstitutionally vague, and was insufficiently particular. The military judge denied the motion. On appeal, however, the Navy-Marine Corps CCA agreed with Perkins that there was no probable cause to search his home, concluding (in a published opinion) that there was no substantial basis for the commander who authorized the search to conclude that there was a fair probability that investigators would find illicit images or videos in the house. In particular, the CCA found that the woman’s allegation of extorsion “did not provide probable cause to search [Perkins’] home.” United States v. Perkins, 78 M.J. 550, 557 (N-M Ct. Crim. App. 2018) (link to slip op.). Nevertheless, the CCA affirmed admission of the evidence by applying the good faith exception.

As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered. Exclusion is a judicially-created rule in the civil courts but it is codified for courts-martial as Mil. R. Evid. 311. Section III of the Military Rules of Evidence actually codifies a wide variety of judge-made law regarding search and seizure (unlike the Federal Rules of Evidence, which do not contain similar codification), and the military rules include many military-specific applications.

The civil courts also recognize – and the military rules codify – a good faith exception to the exclusionary rule based on the conclusion that there is no justification for the practical cost of excluding evidence of guilt when a law enforcement officer “is acting as a reasonable officer would and should act in similar circumstances.” United States v. Leon, 468 U.S. 897, 920 (1984). See also Mil. R. Evid. 311(c)(3). In other words, because the purpose of excluding unlawfully-obtained evidence is to incentivize law enforcement to follow the law, if law enforcement got a warrant and reasonably relied on the warrant, but the warrant was flawed, then law enforcement acted in good faith and there is no bad conduct to be deterred by excluding the evidence.

The good faith exception codified in Mil. R. Evid. 311(c)(3) applies only when three conditions are met:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civil authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

That second requirement, as written, doesn’t involve the officer conducting the search or seizure. Applying the plain language of Mil. R. Evid. 311(c)(3)(B), if an authorization is invalid and if there was no substantial basis for probable cause to issue it in the first instance, then the good faith exception does not apply no matter what the executing officer thought. That’s different from the test established by the Supreme Court in Leon.

CAAF, however, abandoned a plain-language application of Mil. R. Evid. 311(c)(3) nearly 20 years ago, in United States v. Monroe, 52 M.J. 326, 332 (C.A.A.F. 2000). In that case, and with little discussion, CAAF applied the good faith exception as envisioned by the Supreme Court in Leon rather than as set forth in Mil. R. Evid. 311(c)(3). The following year, in Carter, CAAF explained why it did that:

[W]e conclude that Mil. R. Evid. 311(b)(3) [later moved to the current (c)(3)] does not establish a more stringent rule than Leon did for civilian courts. The first prong (a search warrant or search authorization issued by competent authority) is identical to the civilian rule. The second prong addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a “bare bones” recital of conclusions. It must contain sufficient information to permit the individual executing the warrant or authorization to reasonably believe that there is probable cause. The third prong addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely “rubber stamped” their request, or when the warrant is facially defective.

Carter, 54 M.J. at 421. Put differently, in Carter CAAF held that Mil. R. Evid. 311(c)(3) is merely redundant with Supreme Court precedent, even though it is worded differently. Only Judge Sullivan expressed concern with that approach, decrying “the majority’s tortured construction of Mil. R. Evid. 311(b)(3).” 54 M.J. at 423 (Sullivan, J. concurring). He did not suggest following the rule as written, however, but instead quoted the 1992 concurring opinion of Judge Cox that “it is time to de-Manualize these provisions because people keep trying to ‘apply’ them, thinking they are rules.” 54 M.J. at 424 (quoting United States v. Lopez, 35 M.J. 35, 45 n.3 (C.A.A.F. 1992) (Cox, J. concurring)).

Nevertheless, Mil. R. Evid. 311(c)(3) remained a rule – though not one CAAF was willing to actually follow – until Hoffmann, where then-Judge Stucky wrote for a unanimous CAAF (that included Senior Judge Lamberth of the United States District Court for the District of Columbia, who sat by designation), distinguished Mil. R. Evid. 311(b)(3) as the military good faith exception, and applied it as written to suppress child pornography due to the absence of a substantial basis for finding probable cause for the search. 75 M.J. at 128. By recognizing Mil. R. Rvid. 311(c)(3) as the military good faith exception, Hoffmann seemingly reversed the holding of Carter that only the judge-made rule from Leon applies.

Now, with its opinion in Perkins, CAAF reconciles Hoffmann and Carter, unequivocally disregards the rule as written, and concludes that “the NMCCA properly followed our decision in United States v. Carter, 54 M.J. 414 (C.A.A.F. 2001), when applying M.R.E. 311(c)(3).” Slip op. at 2.

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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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