CAAFlog » CAAF Opinions

CAAF decided the Marine Corps case of United States v. Captain, __ M.J. __, No. 15-0172/MC (CAAFlog case page) (link to slip op.), on Thursday, February 4, 2016. The court finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

Chief Judge Erdmann writes for a unanimous court.

CAAF specified two issues for review:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s defense counsel withheld evidence of the appellant’s good military character and conceded that a punitive discharge would be an appropriate sentence. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge. When taking action on the results of the court-martial, the convening authority disapproved the fine and then wrote:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Slip op. at 9. The convening authority’s action did not explicitly approve the adjudged discharge, but it included a statement that “the punitive discharge will be executed, after final judgment.” Slip op. at 9.

On appeal, the appellant asserted that he suffered ineffective assistance of counsel and that the convening authority’s action did not approve the punitive discharge, prohibiting its execution.

CAAF unanimously rejects both of these claims. For the ineffective assistance of counsel claim, Chief Judge Erdmann does not specifically address whether the appellant’s counsel was deficient, but rather finds that the appellant was not prejudiced because the record reflects that the military judge considered his good military character and that the appellant agreed to concede that a punitive discharge was appropriate. For the convening authority’s action, Chief Judge Erdmann finds it ambiguous because of the lack of explicit approval coupled with the reference to future execution. Because the action is ambiguous, CAAF remands for a new action.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Busch, __ M.J. __, No.15-0477/AF (CAAFlog case page), on Friday, January 29, 2016. The court unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.

Chief Judge Erdmann writes for the court, joined by Judge Ohlson and Judge Diaz (of the Fourth Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ryan.

CAAF granted review of a single issue:

At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

The appellant pleaded guilty to multiple offenses, including one specification of sexual abuse of a child in violation of Article 120b(c) (2012) for exposing his genitals and masturbating while the child watched via Skype. The appellant’s misconduct occurred in early 2013; after the 2012 statute’s effective date but before President Obama prescribed maximum punishments for the new offense in Executive Order 13643. The President’s failure to prescribe a maximum punishment forced the military judge to determine the maximum punishment for the appellant’s violation of Article 120b(c) by resorting to Rule for Courts-Martial 1003(c)(1)(B), which requires comparing the charged offense to other offenses listed in the Manual and in the United States Code. If a different offense listed in Part IV of the Manual is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(i) permits using the maximum punishment for that closely related offense. However, if no listed offense is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(ii) requires looking to offenses in the United States Code and the custom of the service.

Applying R.C.M. 1003(c)(1)(B)(i), the military judge concluded that the appellant’s offense of sexual abuse of a child was closely related to the offense of indecent liberty with a child in violation of Article 120(j) (2006), for which the maximum authorized punishment includes confinement for 15 years. The defense, however, argued that the offense of indecent exposure in violation of Article 120(n) (2006), with it’s one-year maximum authorized term of confinement, was more closely related. Despite this objection, the appellant still pleaded guilty. Including the computed 15-year maximum, the appellant faced a total maximum authorized confinement of 22 years and one month, and the military judge sentenced him to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge.

In determining that indecent liberty with a child in violation of Article 120(j) (2006) was closely related to the appellant’s offense of sexual abuse of a child in violation of Article 120b(c) (2012), the military judge made reference to Executive Order 13643. That reference prompted the appellant’s ex post facto claim, as he asserted that the military judge wrongly applied the executive order issued after his commission of the offense. CAAF unanimously rejects this claim.

However, the majority finds that the military judge was wrong to use R.C.M. 1003(c)(1)(B)(i), but finds that application of R.C.M. 1003(c)(1)(B)(ii) reaches the same result. The dissent, however, highlights a significant weakness in the majority’s analysis.

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CAAF decided the Marine Corps case of United States v. Riggins, __ M.J. __, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

Judge Ohlson writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

The case involves the appellant’s sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.

During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.

The military judge made special findings when he convicted the appellant of the lesser offenses, explaining that:

he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”

United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:

One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).

United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).

Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.

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CAAF decided the Navy case of United States v. Bess, __ M.J. __, No. 15-0372/NA (CAAFlog case page) (link to slip op.), on Wednesday, January 6, 2016. The court finds that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence. The court reverses the appellant’s convictions of attempting to commit indecent acts and committing indecent acts, and the decision of the Navy-Marine Corps CCA, and authorizes a rehearing.

Judge Stucky writes for a unanimous court.

CAAF specified the following issue for review in this case:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the alleged indecent acts involved instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. However, the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial.

After the close of evidence and during deliberations the members asked the military judge for additional evidence including muster reports (attendance records) that could be used to determine whether the appellant was the x-ray technician on duty at the time of each alleged indecent act. Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative. Considering the members’ request, the military judge conducted a hearing outside the presence of the members, heard testimony about the muster reports, and concluded that they were admissible as business records. However, the military judge denied a defense request to examine the witnesses before the members or to give additional closing argument, and instead “handed the reports to the panel with no explanation, stating only that they had ‘been admitted into evidence.'” Slip op. at 3. Soon afterward the members returned with their findings.

Judge Stucky finds no fault with the judge’s ruling admitting the muster reports. However, he concludes that “giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process.” Slip op. at 7.

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CAAF issued its first decision of the term, in the Air Force case of United States v. LaBella, 75 M.J. 52, No.15-0413/AF (CAAFlog case page) (link to slip op.), on Friday, December 11, 2015. In a short opinion the court holds that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

Judge Stucky writes for a unanimous court.

CAAF reviewed the following specified issue in this case:

Whether appellant’s petition for grant of review should be dismissed for lack of jurisdiction when the court of criminal appeals entertained an untimely filed motion for reconsideration for “good cause,” but denied the motion on other grounds, and appellant filed a petition for grant of review with this court under Article 67, UCMJ, more than 60 days after the original decision of the court of criminal appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

In 2010, the appellant was tried by a general court-martial composed of officer members. He was convicted, contrary to his pleas of not guilty, of one specification of wrongful and knowing possession of visual depictions of minors engaging in sexually explicit conduct and one specification of wrongful and knowing possession of “what appear to be” minors engaging in sexually explicit conduct, in violation of Article 134. The members sentenced him confinement for six months, forfeiture $447.00 pay per month for 3 months, reduction to E-1, and a dishonorable discharge. The convening authority reduced the discharge to a bad-conduct discharge.

The Air Force Court of Criminal Appeals conducted two reviews in the case. In the first review, completed in 2013, the AFCCA rejected the appellant’s assertions that the military judge improperly admitted evidence of images that did not constitute child pornography, and the CCA affirmed the findings and sentence. CAAF then granted review and summarily remanded the case (discussed here) for consideration in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. May 15, 2012) (CAAFlog case page). The AFCCA then completed its second review of the case in July 2014, applying its own decision in United States v. Piolunek, 72 M.J. 830, (A.F. Ct. Crim. App. Oct 21, 2013), aff’dUnited States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page), to conclude that any error was harmless beyond a reasonable doubt.

However, after the AFCCA issued its July 2014 decision, the appellant’s detailed military appellate defense counsel did not appeal that decision to CAAF within the 60 day time period for doing so, nor did his counsel seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after some apparent changes in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014.

The CCA granted that petition and reconsidered the case, however it denied the appellant any relief. The appellant then petitioned CAAF for review, but the Government opposed the petition on jurisdictional grounds. CAAF then specified the jurisdictional question for review.

In today’s decision, Judge Stucky concludes that the AFCCA did not have jurisdiction to grant the out-of-time petition for reconsideration. It is the second time in four months that Judge Stucky has authored a decision of the court that finds that the AFCCA acted outside its jurisdiction (the other being United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page)).

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CAAF decided the interlocutory Army case of United States v. Stellato, 74 M.J. 473, No. 15-0315/AR (CAAFlog case page) (link to slip op.), on Thursday, August 20, 2015. Finding significant flaws in the way the trial counsel (military prosecutor) handled his discovery obligations, CAAF affirms the pretrial ruling that dismissed with prejudice charges involving alleged sexual assault of a child, concluding that the military judge did not abuse his discretion in finding discovery violations and finding no lesser remedy adequate. CAAF reverses the decision of the Army CCA and reinstates the military judge’s ruling dismissing the case.

Judge Ohlson writes for the court. Judge Stucky writes separately, concurring in the result but disagreeing with the majority’s conclusion regarding one of the numerous discovery issues.

The accused, a mobilized reservist, was charged with various acts of alleged sexual molestation of his biological daughter, Miss. MS, from 2007 through 2009, when the child was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials (some of them highly exculpatory) assembled and held by the alleged victim’s mother and referred to as a “box” of evidence. Another item is a plastic banana allegedly used to assault the girl and subsequently held by civilian authorities. Other concerns involve a witness that the Defense sought to interview, and an expert whose testimony would have been favorable to the Defense but who suddenly died during delays incurred by litigation of the discovery issues.

The Defense sought multiple continuances of the trial, asserting outstanding discovery issues. The military judge granted numerous continuances, once “warn[ing] the Government that its decision to ‘take a hard stand on discovery
. . . invited disaster at trial.’ (Ellipsis in original.).” Slip op. at 10 (marks omitted). That disaster eventually arrived for the Government when the Defense moved to dismiss the charges due to prosecutorial misconduct and the military judge found “‘continual and egregious discovery’ violations by CPT Jones,” the trial counsel. Slip op. at 14. Then, “after considering ‘all possible remedies in this case’ and the requirement ‘to craft the least drastic sanction,’ the military judge dismissed the case with prejudice based on ‘the nature, magnitude, and consistency of the discovery violations’ in the case.” Slip op. at 14.

The Government appealed and in a published decision issued last November (discussed here) a three-judge panel of the Army CCA reversed the military judge, finding that the military judge “clearly misjudged the scope and magnitute of the discovery issues in this case.” 74 M.J. 501, 515 (A. Ct. Crim. App. Nov. 17, 2014). CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.

II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

Yesterday’s decision reverses the CCA but does so by piercing through the CCA’s decision and “review[ing] the military judge’s rulings directly,” with  CAAF concluding that “the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice.” Slip op. at 15.

It is, at first glance, the most significant prosecutorial misconduct case decided by CAAF since United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (finding prejudicial misconduct in the trial counsel’s findings argument). Where Fletcher defined the contours of Government argument, Stellato defines the contours of Government discovery.

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CAAF decided the Coast Guard case of United States v. Sullivan, 74 M.J. 448, No. 15-0186/CG (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. The court finds that it was harmless error for the convening authority to categorically exclude flag officer from the pool of potential members, and that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias, affirming the decision of the Coast Guard CCA and the appellant’s convictions and sentence.

Judge Ohlson writes for the court, joined by all but Chief Judge Erdmann who dissents from the majority’s conclusion about an appearance of bias in the military judge.

The appellant is a senior Coast Guard Captain (O-6), with 27 years of service at the time of trial, who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review of two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

In Wednesday’s opinion CAAF unanimously finds that the Government has met its burden to prove that the exclusion of flag officers was harmless, and it splits 4-1 to find that a reasonable person familiar with all the circumstances of the case would not conclude that the military judge’s impartiality might reasonably be questioned.

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Today CAAF issued the final decision of the term, reversing the Army CCA and reinstating the military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations, in United States v. Stellato, No. 15-0315/AR (CAAFlog case page) (link to slip op.).

In addition to CAAF’s decision in Arness (CAAFlog case page) (analyzed here), and its decision affirming the death sentence in Akbar (CAAFlog case page) (decision mentioned here), the court yesterday also decided United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), rejecting the appellant’s assignments of error.

All of the term’s opinions (with brief summaries) are listed on our September 2014 Term of Court page. However, I have not yet updated the page to reflect the decisions in Akbar, Sullivan, and Stellato (I will do that after I complete the opinion analysis for each case).

Annual End o’ Term stats to follow.

CAAF decided the Air Force case of United States v. Arness, 74 M.J. 441, No. 14-8014/AF (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. Holding that the Air Force CCA did not have jurisdiction to consider the appellant’s case under Article 69, CAAF dismisses the writ-appeal of the CCA’s denial of the appellant’s petition for extraordinary relief.

Just Stucky writes for the court, joined by all but Judge Baker who writes separately but concurs in the result.

The appellant is an Air Force Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General (JAG) of the Air Force pursuant to Article 69. Under that provision, the JAG reviews any general court-martial that does not trigger Article 66 jurisdiction, and the JAG can take corrective action or send the case to the CCA for further review.

In Arness the JAG found no error and affirmed the findings and sentence, and then the JAG denied the appellant’s request for reconsideration. The then appellant filed a writ petition with the AFCCA, asserting 13 errors and seeking extraordinary relief. The CCA found that it had jurisdiction to consider the petition, but denied relief. The appellant (appearing pro se) then sought CAAF review of the CCA’s denial of relief, but CAAF specified a different issue for its consideration:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

In yesterday’s decision CAAF answers this question with a resounding no. “As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it.” Slip op. at 7.

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Opinion here. Judge Olson writes for a three judge majority. Judge Baker dissents, joined by Chief Judge Erdmann.

Prior coverage at the CAAFlog case page.

More to follow.

CAAF decided the certified case of United States v. Quick, 74 M.J. 332, No. 15-0347/MC (CAAFlog case page) (link to slip op.), on Tuesday, August 11, 2015. A divided court rejects a Government challenge to longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial. Holding that the Government failed to justify reversing this precedent, CAAF affirms the decision of the NMCCA that ordered a sentence-only rehearing in this case.

Chief Judge Erdmann writes for the court joined by Judge Ryan. Judge Baker writes separately, concurring in the result. Judge Stucky dissents, joined by Judge Ohlson.

The Judge Advocate General of the Navy certified the following issue to CAAF:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

The Navy-Marine Corps CCA ordered a sentence-only rehearing in this case after it reversed the appellee’s conviction of viewing an indecent visual recording in violation of Article 120(c) because it found that the offense requires actually viewing the real-life private area of a person (and not merely viewing a recording as the appellee did). United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. 2014) (discussed here). The CCA ordered the rehearing because it found that it could not reassess the sentence for the other convictions because the penalty landscape was dramatically changed by the reversal of the indecent viewing conviction. The court’s order returned the case to the convening authority with the option to either refer the case to a new court-martial to adjudge another sentence or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii). But the Navy JAG certified the case to CAAF to challenge the CCA’s authority to issue such an order.

In yesterday’s decision CAAF rejects that challenge because:

In the more than six decades since the adoption of the UCMJ, this court has consistently interpreted Article 66(d), UCMJ, to authorize CCAs to order sentence-only rehearings. . . . The ability of CCAs to order sentence-only rehearings is an accepted and viable appellate remedy and is relied upon by all litigants in the military justice system.

Slip op. at 16.

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CAAF decided the interlocutory Army case of United States v. Schloff, 74 M.J. 312, No. 15-0294/AR (CAAFlog case page) (link to slip op.), on Thursday, July 16, 2015. A divided court concludes that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact. CAAF affirms the decision of the Army CCA that reversed the contrary conclusion by the trial judge, and the court remands the case for further proceedings.

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

The appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). All five specifications alleged that the appellant committed sexual contact by touching an individual patient’s breasts with a stethoscope. Each specification involved a separate alleged victim. Three specifications were referred to trial, and Appellant was convicted of one.

At trial, the appellant asserted that the specifications failed to state an offense because touching with a stethoscope does not constitute sexual contact. The judge deferred ruling on the issue until after the members found the appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The Government appealed and the Army CCA reversed the trial judge. CAAF then grated review of a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

In today’s 3-2 opinion, CAAF narrowly concludes that the Army court did not err, that there is no ambiguity in the statutory definition of sexual contact, and that the definition includes “those instances where an accused touches a victim with an object.” Slip op. at 3.

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CAAF decided the Air Force case of United States v. Plant, 74 M.J. 297, No. 15-0011/AF (CAAFlog case page) (link to slip op.), on Wednesday, July 15, 2015. Taking a narrow view of the facts of the case based on the wording of the specification and the findings at trial, a divided CAAF finds that the evidence is legally insufficient to support the appellant’s conviction for child endangerment. The court reverses the conviction and the decision of the Air Force CCA, remanding for further action on the sentence.

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

CAAF granted review of a single issue:

Whether the evidence is legally sufficient to support the finding of guilty to Charge V and its specification (child endangerment) because the evidence failed to prove Appellant’s alcohol use alone amounted to culpable negligence that endangered the welfare of L.P.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape, aggravated sexual assault of a child over 12 but under 16, adultery, and child endangerment, in violation of Articles 120 and 134. He was sentenced to confinement for 12 years, reduction to E-1, and a dishonorable discharge.

The conviction of child endangerment is largely unrelated to the other offenses. During a party at his house, the appellant became intoxicated. At the time, the appellant’s infant son was sleeping in the house and did not awaken during the night. The other offenses occurred during the party but did not otherwise involve or implicate the child.

The appellant was charged with child endangerment in violation of Article 134 with the following specification:

Within the State of Arkansas, between on or about 9 April 2011 and on or about 9 May 2011, [Appellant] had a duty for the care of L.E.P., a child under the age of 16 years, and did endanger the welfare of said L.E.P., by using alcohol and cocaine, and that such conduct constituted culpable negligence, and that under the circumstances, the conduct was of a nature to bring discredit upon the armed forces.

Slip op. at 4. The members convicted the appellant of this specification, however they excepted the words “and cocaine,” acquitting the appellant of that allegation. This finding significantly limits that majority’s review of the sufficiency of the evidence, with Judge Ohlson explaining that:

Thus, because of the manner in which the Government charged the offense, and because of the panel’s verdict in regard to the specification, the child endangerment conviction was based solely on Appellant’s use of alcohol at the time he had a duty to care for his son. Accordingly, we may not examine whether Appellant endangered LP by allegedly using cocaine during the party, by inviting virtual strangers into his home while his young son was present, or by sexually assaulting two young women in the same residence in which his son slept.

Slip op. at 4-5 (citations omitted). It is this limitation that divides the court.

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CAAF decided the Army case of United States v. Murphy, 74 M.J. 302, No. 14-0767/AR (CAAFlog case page) (link to slip op.), on Wednesday, July 8, 2015. Holding that ammunition is an explosive as the term is defined in the Manual for Courts-Martial, CAAF affirms the appellant’s pleas of guilty to larceny and conspiracy to sell military 5.56mm ammunition with the aggravating factor that the ammunition was an explosive, and also affirms the published decision of the Army CCA.

Judge Ryan writes for the court, joined by all but Judge Erdmann who concurs in the result.

The appellant pleaded guilty to offenses that included larceny and conspiracy to sell military 5.56 mm ammunition. Wrongful sale of military property (in violation of Article 108) and larceny (in violation of Article 121) have a range of maximum punishments depending on the existence of potential aggravating factors. One such factor is whether the object of the sale or larceny is an explosive. The charges against the appellant alleged that the 5.56 mm ammunition was an explosive, the appellant accepted that the ammunition was an explosive, and the Army CCA affirmed that conclusion in a published and en banc, but non-unanimous, opinion (discussed here).

CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred in concluding that ammunition constitutes an explosive for purposes of the sentence aggravator of Articles 108 and 121, UCMJ.

Judge Ryan’s opinion explains that the appellant “stole, in aggregate, approximately 5000 rounds of 5.56 mm ammunition. Appellant alleges that there is a substantial basis in law to question the providence of his plea because ammunition is not an explosive within the meaning of either R.C.M. 103(11), or MCM pt. IV, para. 46.e.(1)(c), and because the definition of ‘explosive’ given by the military judge rendered the plea improvident.” Slip op. at 6-7. But CAAF finds no such basis to disturb the plea, with the majority concluding that:

because the definition of explosives in R.C.M. 103(11) includes ammunition and Appellant described all the facts necessary to establish his guilt.

Slip op. at 7.

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CAAF decided the Air Force case of United States v. McIntosh, 74 M.J. 294, No. 14-0685/AF (CAAFlog case page) (link to slip op.), on Wednesday, July 8, 2015. The court rejects the appellant’s claim of ineffective assistance of counsel, finding that there was a tactical reason for the appellant’s defense team to not seek the admission of sexual assault examination reports. CAAF affirms the decision of the AFCCA and the appellant’s child sexual assault convictions.

Judge Stucky writes for a unanimous court.

CAAF granted review to determine:

Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed members with enlisted representation, of rape of a child, aggravated sexual abuse of a child, assault with the intent to commit rape, and of communicating a threat, in violation of Articles 120 and 134. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The child subject of the allegations was Appellant step-daughter, and the charges alleged assaults from 2005 to 2010.

The prosecution’s case was based on witness testimony and not physical evidence. But there were sexual assault examinations conducted in 2007 and 2010 that indicated that the child’s “genitalia were ‘without abnormality’ (2007 SANE report) and ‘normal’ (2010 SANE report).” Slip op. at 4. The results of these examinations were not admitted into evidence by either side, and the appellant asserted on appeal that his counsel’s failure to admit them constituted ineffective assistance of counsel. The appellant based his claim on the argument that “the reports are especially exculpatory in that they showed the victim’s hymen to be intact at both times and because they ‘bookended’ the period of rape and sexual assault.” Slip op. at 4.

The Air Force CCA rejected this claim, concluding that there are reasonable explanations for the defense decision to not seek admission of the reports. In yesterday’s opinion, CAAF agrees.

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