CAAFlog » CAAF Opinions

CAAF decided the Army case of United States v. MacDonald, No. 14-0001/AR, 73 M.J. 426 (CAAFlog case page) (link to slip op.) on Wednesday, August 27, 2014. The court unanimously finds that the military judge’s failure to give an involuntary intoxication instruction regarding Appellant’s use of the smoking-cessation drug Chantix was error that was not harmless, reversing the decision of the Army CCA that affirmed Appellant’s conviction for the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept for which, along with, other offenses, Appellant was sentenced to life without the possibility of parole.

Chief Judge Baker writes for the court.

At trial Appellant asserted the defense of lack of mental responsibility, in part because of his use of the drug varenicline (known by the brand name Chantix) to help him quit smoking. Use of Chantix has been associated with homicidal ideations, and part of Appellant’s defense strategy was to claim involuntary intoxication by Chantix as a basis for a lack of mental responsibility. But the military judge quashed a subpoena for records related to Chantix from its manufacturer (Pfizer, Inc.) and also refused to give the members a Defense-requested instruction during the findings phase regarding the defense of involuntary intoxication (though the judge did instruct on the defense of lack of mental responsibility).

The Army CCA affirmed the findings and sentence after determining that quashing the subpoena and failing to give the instruction were errors, but that they were harmless in light of the evidence of Appellant’s ability to appreciate the wrongfulness of his conduct. CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.

II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

The second issue is dispositive to the case and the court does not reach the first issue.

The Chief Judge’s analysis begins by noting that even though involuntary intoxication is not one of the defenses listed in R.C.M. 916, that rule “provides an illustrative rather than an exhaustive list of defenses.” Slip op. at 23-24.  “In [United States v. Hensler, 44 M.J. 184, 187-88 (C.A.A.F. 1996)], this Court recognized involuntary intoxication as an affirmative defense and the Government has not challenged that legal conclusion at trial or on appeal. Rather, the Government challenge has been to the scope of the defense and its factual applicability in this case.” Slip op. at 24.

The Government’s view of involuntary intoxication (discussed the final paragraphs of my argument preview) what that it was “subsumed within the defense of mental responsibility” for which the members were properly instructed. Slip op. at 28. This position is based on the language of Hensler that “involuntary intoxication is treated like legal insanity. It is defined in terms of lack of mental responsibility.” Hensler, 44 M.J. at 188. But Chief Judge Baker’s opinion explains that there is substantial difference between lack of mental responsibility and involuntary intoxication.

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CAAF decided the Air Force case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014. Wilson is a companion case to United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), and echoes the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. But CAAF finds that Article 12 was not violated in this case because Technical Sergeant Wilson was confined alone. The court answers the certified issue in the negative and affirms the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by all but Chief Judge Baker who dissents with a single sentence that refers to his separate opinion in McPherson.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of violating a lawful order in violation of Article 92 (he was acquitted of numerous other charges). He was sentenced to reduction to E-2, confinement for three months, and a bad-conduct discharge. He served the entire sentence to confinement in a local civilian jail because there was no nearby military confinement facility. Pursuant to a standing policy, the jail segregated Appellee from the other prisoners in order to avoid housing him with foreign nationals. Appellee complained about this segregation in his post-trial submission to the convening authority, and then again to the Air Force CCA where he alleged that being held in isolation at the civilian jail constituted cruel and unusual punishment in violation of Article 55. The CCA rejected Appellee’s claim, finding that TSgt Wilson failed to show that jail officials were deliberately indifferent to his health and safety, and noting: “To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ.” United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012).

CAAF then summarily remanded the case for the CCA to consider whether Article 12 applies, which the court did in a published opinion issued in January, concluding that there is no geographical limitation to Article 12. United States v. Wilson, 73 M.J. 529 A.F. Ct. Crim. App. 2014). The Judge Advocate General of the Air Force then certified the case to CAAF with the exact same issue as the one certified in McPherson:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

But because Appellee never raised an Article 12 claim – he actually specifically rejected it during oral argument at the CCA – he asserted that CAAF lacked jurisdiction to consider the certified issue. Judge Stucky’s majority opinion rejects the assertion, finding that CAAF can consider the certified issue because “there is a justiciable case and controversy . . . [t]he CCA has rendered a “final action” in Appellee’s case . . . the applicability of Article 12 to TSgt Wilson is interwoven with the resolution of his complaints about confinement conditions.” Slip op. at 5. Appellee’s efforts to obtain further review of the actual circumstances of his segregated confinement is also rejected in a short footnote. Slip op. at 2 n.1.

Judge Stucky’s majority opinion is short – just barely over five pages – making it the shortest opinion of the court this term, and it avoids considering whether the segregation of Appellee in order to avoid a violation of Article 12 resulted in a violation of some other legal right. At the CCA, Appellee complained about his segregated confinement as cruel and unusual punishment, in violation of Article 55. The CCA’s analysis of that claim – now dispositive in this case – is somewhat unsatisfying:

The appellant’s claim fails because he has not established that jail officials were deliberately indifferent to his health and safety. To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ. Such routine conditions of administrative segregation do not constitute cruel and unusual punishment under an Eighth Amendment analysis absent deprivation of life’s necessities or infliction of unnecessary pain. Avila, 53 M.J. at 101-02. Although the appellant questions the management decisions of the local jail, his questions are insufficient to show the required culpable state of mind.

United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012). There is a wide range of possible deprivations that a service member might suffer between segregation to prevent commingling and deliberate indifference to health and safety.

In the conclusion of my analysis of McPherson I doubted that CAAF’s decision about the applicability of Article 12 would portend a flood of Article 12 claims. Wilson reinforces that conclusion because the segregation of Appellee from the rest of the jail population avoided the Article 12 issue altogether. But segregation also involves deprivation; of social interaction with other people and potentially of privileges (e.g., Appellee’s segregation meant that he did not have television privileges). The Government may avoid Article 12 claims by segregating military prisoners when they are held in civilian facilities, but it will invite a multitude of claims about the conditions of that segregation.

Case Links (Wilson):
AFCCA opinion (2012)
AFCCA opinion (73 M.J. 529)
Blog post: The back-to-the-future theory of certification?
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) 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. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but also holding that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF affirms the decision of the Air Force CCA and answers in the negative both the issue certified by the Judge Advocate General of the Air Force and the issue granted on petition of Senior Airman McPherson.

Judge Stucky writes for the court joined by all by Chief Judge Baker, who dissents from the majority’s conclusion about the applicability of Article 12 but concurs with the majority’s requirement for exhaustion of administrative remedies prior to judicial relief.

McPherson and the companion case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), are about the application of Article 12 of the UCMJ, which states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

It is the foreign nationals provision at issue in McPherson, because after McPherson was convicted of numerous offenses at a special court-martial and sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge, he was initially confined at the Elmore County Detention Facility in Idaho (a somewhat-common practice, explicitly permitted by Article 58, used when there is no readily available military confinement facility). He was in that civilian facility for 15 days, and “for eight of those days, he was housed in an open bay with a foreign national known only as ‘The Mexican,’ who was awaiting deportation hearings.” Slip op. at 3-4 (quoting United States v. McPherson, 72 M.J. 862, 869 (A.F. Ct. Crim. App. 2013)). He did not complain about this co-mingling at the time or in his post-trial submissions to the convening authority, however he did raise the issue during the automatic review by the CCA.

The CCA reviewed the issue without specifically addressing the applicability of Article 12. Instead, the CCA determined that there was no excuse for failing to seek administrative relief and declined to provide any judicial relief. But the Government sought en banc reconsideration by the CCA, asserting that “the CCA had ‘implicitly establishe[d] as a matter of law in the Air Force that Article 12 applies to civilian confinement facilities.'” Slip op. at 4 (modification in original). The CCA denied the Government’s motion for reconsideration. The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:

Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

CAAF subsequently granted review of a second issue upon petition by McPherson:

There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

This procedural posture establishes the Government as appellee and cross-appellant, and McPherson as appellant and cross-appellee, but I will refer to them as “the Government” and “McPherson” for simplicity.

Judge Stucky’s majority opinion answers both issues in the negative and wholly affirms the opinion of the CCA, explicitly establishing as a matter of law that Article 12 applies to civilian confinement facilities and firmly embracing the requirement that judicial relief for a violation of Article 12 requires that the prisoner first exhaust administrative remedies. While both sides lose in this analysis, I think the greater loss is suffered by the Government.

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Yesterday, on August 21, 2014, CAAF issued its opinions in United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), and United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.). Judge Stucky writes for the court in both cases, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but that a service member must exhaust all administrative remedies prior to seeking judicial intervention for a violation of Article 12. Chief Judge Baker dissents in part from both cases, disagreeing on the majority’s conclusion about the applicability of Article 12.

I will publish a full analysis of each opinion on Monday.

Of the 32 cases argued at CAAF this term, only one remains undecided: United States v. MacDonald, No. 14-0001/AR (CAAFlog case page).

CAAF decided the Army case of United States v. Davenport, No. 13-0573/AR, 73 M.J. 373 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A majority of the court finds that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reverses the CCA and remands the case for the convening authority to take action consistent with R.C.M. 1103(f).

Judge Ryan writes for the court. She is joined by all but Chief Judge Baker, who dissents because he finds that the missing testimony was not so important to the findings of guilt as to render the transcript nonverbatim.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of conspiracy, extortion, and bribery in connection with his duties as the force protection noncommissioned officer-in-charge for FOB Rustamiyah, Iraq, where he extorted money from local nationals in exchange for helping them conduct business on the base. He was acquitted of a charge of money laundering. He was sentenced to confinement for two years, reduction to E-1, and a bad-conduct discharge. The convening authority approved only one year of confinement, but otherwise approved the adjudged sentence.

When the case arrived at the Army CCA for appellate review it was discovered that:

[M]issing from the record [of trial] was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. Although the court reporter recorded the testimony, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged, preventing recovery of the original recorded data. The testimony’s omission from the record was first discovered by appellate defense counsel on appeal to the ACCA. But he was acquitted of a money laundering charge, and that charge was the focus of the missing testimony of Sergeant Smith.

Slip op. at 5. Last term, in United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (CAAFlog case page), CAAF found that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit. A major contention in Gaskins was whether the sentence-limitations of R.C.M. 1103(f) applied to the case (no punitive discharge and no confinement or forfeitures beyond six months), but because the transcript in Gaskins was verbatim, CAAF found the rule inapplicable. The court also noted that while Article 54 requires a complete record, nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record.

In Davenport, the Army CCA ordered a DuBay (post-trial factfinding) hearing “to provide the Government an opportunity to reconstruct SGT MS’s testimony.” Slip op. at 6. The DuBay revealed that missing testimony primarily – but not necessarily exclusively – related to the money laundering charge of which Appellant was acquitted. The case was returned to the CCA where:

After considering the findings from Appellant’s DuBay hearing, the ACCA found that “the government was unable to obtain or adequately reconstruct the exact testimony of SGT MS.” Davenport, 2013 CCA LEXIS 361, at *14, 2013 WL 1896277, at *4. Despite this fact, and in tension with the DuBay military judge’s conclusion that the substance and extent of SGT MS’s testimony was “not altogether clear” and that the testimony only “mostly” related to two money laundering charges of which Appellant was acquitted, the ACCA found that SGT MS “had no information relevant to any offense of which Appellant was convicted” and that his testimony “only related to the two money laundering specifications of which appellant was acquitted.” Id. at *11–*14, 2013 WL 1896277, at *3–*4 (emphasis added)

Slip op. at 7. The CCA then affirmed the sentence, finding that “the record in appellant’s case [was] both substantially verbatim and complete for appellate review purposes.” Slip op. at 8 (citation and marks omitted).

Judge Ryan’s opinion of the court focuses on CAAF’s disagreement with the CCA’s conclusion, and she writes that the majority is “hard pressed to agree with the ACCA that we can be certain of what SGT MS testified about.” Slip op. at 12.

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CAAF decided the Army case of United States v. Moon, No. 13-0536/AR, 73 M.J. 382 (CAAFlog case page) (link to slip op.), on Monday, August 11, 2014. A divided court finds two substantial bases in law and fact to question Appellant’s plea of guilty to wrongful possession of images of nude minors and persons appearing to be nude minors, in violation of Article 134, and sets aside the plea. CAAF reverses the decision of the Army CCA and remands the case for a sentence reassessment.

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

Appellant was convicted pursuant to his pleas of guilty, by a general court-martial composed of a military judge alone, of two specifications of wrongful possession of child pornography and one specification of wrongful possession of images of nude minors and persons appearing to be nude minors, all in violation of Article 134. He was sentenced to confinement for six months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The “nude minors” specification was charged as a simple disorder with a maximum punishment of confinement for four months. Gov’t Br. at 3.

When Appellant pleaded guilty, the military judge defined child pornography with reference to the federal definition, explaining that “the images [for the child pornography specifications] qualified as child pornography based only on lascivious exhibition of the genitals.” Slip op. at 3-4 (citing 18 U.S.C. 2256(2)). But the nude minors specification was essentially a catchall for other images that – while showing unclothed children – did not meet the definition of child pornography. “With very few exceptions, the images . . . depict minors who appear to be in some sort of nudist colony or camp. They are playing sports, playing on a beach, taking photos with each other, and doing other innocuous and nonsexual activities.” Slip op. at 13

This case is something of a trailer to United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page), in which CAAF reversed a conviction for possession of images that depict minors as sexual objects or in a sexually suggestive way (called “child erotica”) as service discrediting conduct in violation of Article 134, finding that the appellant in Warner was deprived of the due process right to fair notice that his conduct was criminal. Notably, Judge Stucky also wrote for CAAF in Warner, and Chief Judge Baker also dissented (the case was argued before Judge Ohlson joined the court).

In Moon, Appellant petitioned CAAF for review of the case on the merits (identifying no specific issues), but the court specified two issues for review:

I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.

II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.

Judge Stucky’s discussion begins by assuming, without deciding, that Appellant had fair notice. Slip op. at 10. While not a dispositive issue to the case, Judge Ohlson’s dissent discusses the “deeply rooted practice in the military justice system” of prosecuting offenses under Article 134. Diss. op. at 3. Judge Ohlson also explains that “the determination of whether a reasonable member would know that his or her conduct fell within the reach of Article 134, UCMJ, can be made by the application of common sense.” Diss. op. at 4 (citing United States v. Ashby, 68 M.J. 108, 119 (C.A.A.F. 2009)). Judge Ohlson then concludes that:

Although the images knowingly possessed by Appellant may not meet the definition of child pornography under the provisions of the CPPA, many of these images certainly meet a common sense definition of child pornography.

This is the same position taken by Chief Judge Baker in his dissent in Warner, but it is firmly rejected by the majority with Judge Stucky writing that the majority “wholly reject[s] the dissent’s ‘common sense’ test.” Slip op. at 10 n.1.

But Judge Stucky and the majority reject Appellant’s plea for two other reasons: “[T]he plea contains unresolved inconsistencies,” slip op. at 12, and “there is a substantial basis upon which to question whether either the military judge or Appellant understood how the law related to the facts of his case,” slip op. at 14.

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CAAF decided the Coast Guard case of  United States v. Leahr, 14-0265/CG, 73 M.J. 364 (CAAFlog case page) (link to slip op.), on Friday, July 25, 2014. A divided court finds that Appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court finds no improper reason behind the dismissal. The court also rejects – in a brief footnote – a challenge to the impartiality of the military judge. CAAF affirms Appellant’s convictions and the decision of the Coast Guard CCA.

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

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as allegations of burglary and kidnapping. The members sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Appellant’s brief to CAAF explained that the charges involved two alleged victims. Most of the charges alleged offenses against Appellant’s fiancee (BM), but one of the assault specifications involved another Coast Guard member (LS). The allegation involving LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior (and Appellant was ultimately acquitted of that offense). But,

 Based on this new allegation, on September 1, 2011, the convening authority signed a document titled, “Withdrawal and Dismissal of Charges Against Appellant],” which stated:

The charges and specifications referred to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice. . . . In anticipation of the possibility that this new allegation will cause [Appellant] to become the subject of a newly preferred additional charge which would warrant referral to a court-martial, I desire that the accused to be [sic] tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.

Slip op. at 4. Five days later the original charges were re-preferred, with two changes. The first change was an addition of terminal element language to the Article 134 specifications (it was omitted from the first charge sheet). The second change was the addition of a specification of assault consummated by a battery involving LS. A second Article 32 investigation was conducted, but it only considered the new specification. The charges were then referred to another general court-martial, and Appellant moved to dismiss for improper referral and violation of his regulatory speedy trial right under Rule for Courts-Martial 707. “The military judge denied both motions finding, among other things, that the withdrawal and dismissal of the original charges was valid and for a proper reason.” Slip op. at 5-6. The CCA affirmed, “relying on the fact that the convening authority dismissed the original charges,” and “that the reason for withdrawal and re-referral was greater judicial and cost efficiencies.” Slip op. at 6 (marks and citations omitted).

CAAF then granted review of three issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Judge Ryan frames the first (and main) issue as a question of fact:

In this case, if the convening authority dismissed the original charges on September 1, 2011, the dismissal reset the speedy trial clock and no violation under R.C.M. 707 occurred. If, however, his action amounted to a withdrawal only, the speedy trial clock was not reset and the 190-day period between the initial preferral on March 1, 2011, and arraignment on all charges on November 8, 2011, violated R.C.M. 707.

Slip op. at 8 (citations omitted). The majority concludes that “on balance . . . the convening authority intended to, and did, dismiss the original charges.” Id.

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CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, 73 M.J. 357 (CAAFlog case page) (link to slip op.), on Monday, July 21, 2014. The court abrogates the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applies that test to the facts of the case and determines that the military judge’s ruling admitting Appellant’s confession was not clearly erroneous, affirming Appellant’s conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

While deployed to Iraq in 2011, Appellant (a military policeman with the rank of Specialist (E-4)) participated in a robbery of an Iraqi businessman of over $380,000 in U.S. currency. Before the robbery, Appellant and his roommate (another military policeman named Carrasquillo whose conviction is also under review by CAAF (grant discussed here)) attempted to recruit then-Private First Class (E-3) Ellis into the conspiracy. Ellis was an augmentee military policeman who wore a military policeman’s uniform but had little formal training. Ellis thought the idea a joke, but when he later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31(b), UCMJ.

The questioning included the following exchange:

SPC Ellis: “Don’t play games with me . . . . Why’d you do it?”
Appellant: “What are you talking about?”
SPC Ellis: “Jones, don’t f’n play games with me.”
Appellant: “All right. We did it.”
SPC Ellis: “Who is we?”
Appellant: [No response]
SPC Ellis: “Where’s your roommate, Carrasquillo?”
Appellant: “I guess, he’s in the room.”

Slip op. at 5. Ellis reported what Appellant told him to his section leader. Appellant was eventually charged with the robbery. At trial he moved to suppress his statements to Ellis due to the fact that Ellis did not warn him about his right to remain silent in accordance with Article 31(b). “The Government responded in opposition to the motion and argued that SPC Ellis was not required to give Article 31(b), UCMJ, warnings because (1) SPC Ellis was not acting in an official capacity, and (2) SPC Ellis did not coerce Appellant.” Slip op. at 6. The military judge agreed with the Government, Ellis testified at trial, and Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of conspiracy to commit burglary and burglary, in violation of Articles 81 and 129. Appellant was sentenced to confinement for two years and a bad-conduct discharge.

The Army CCA summarily affirmed Appellant’s convictions but CAAF granted review to determine:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Judge Ryan answers that question in the negative, finding that “the military judge did not abuse his discretion in admitting Appellant’s statement, as [Ellis] was not acting in an official law enforcement or disciplinary capacity when he questioned Appellant.” Slip op. at 2-3.

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CAAF decided the Army case of United States v. Treat, No. 14-0280/AR, 73 M.J. 331 (CAAFlog case page) (link to slip op.) on Wednesday, July 16, 2014. A plurality of the court holds that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance is not fatal because it did not prejudice Appellant. The court therefore affirms the published decision of the Army CCA that affirmed Appellant’s conviction for missing movement (despite the fact that the CCA found no material variance).

Judge Ohlson writes for the court, joined by Judge Erdmann (and creating what I believe is the first plurality opinion of the court since Forney (discussed here) was decided in 2009). Chief Judge Baker writes separately, concurring in the result but finding that the variance was not material. Judge Stucky dissents across the board, finding that Appellant waived this issue, and further finding that even if Appellant didn’t waive the issue then the variance was both material and fatal and the conviction should be reversed. Judge Ryan also dissents, joining Judge Stucky’s dissent but writing separately to express skepticism about whether the court should find waiver in this case.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight left. His command didn’t believe his story, and he was soon charged. He was convicted contrary to his pleas of not guilty, by a special court-martial composed of a military judge alone, of missing movement and making a false official statement in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

CAAF granted review of a single issue involving the missing movement conviction:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

The Government charged Appellant as follows:

In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

Slip op. at 3 (emphasis added). “However, at trial the Government’s witnesses could not recall the flight number of the aircraft on which Appellant’s unit deployed. After hearing all the evidence, the military judge convicted Appellant of the missing movement charge, but only after excepting the words ‘Flight TA4B702,’ and substituting therefor the words ‘the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.'” Slip op. at 3.

The Defense did not move for a finding of not guilty based on the Government’s failure to prove the flight number, nor did the Defense object at the time the military judge made the findings (a fact that Judge Ohlson addresses in a last-page footnote as requiring plain error review). However, the Defense did raise the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge, and it is a potential issue when findings are made by exceptions and substitutions. Exceptions and substitutions are changes to a specification permitted by Rule for Courts-Martial 918; an accused may be found guilty of a specification while not guilty of certain language within the specification (exceptions) and guilty of other language added to the specification (substitutions).

In this case, the Defense strategy was based on Appellant’s asserted kidnapping, and “the defense’s theme throughout the trial was ‘the truth is stranger than fiction.'” Slip op. at 8. But “in order ‘to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” Slip op. at 12 (emphasis in original) (quoting United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)). On automatic review the Army CCA found no material variance in the findings, issuing a published decision (72 M.J. 845). I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and concluded that there was a material variance in the findings and that the CCA’s finding of no variance was mistaken. But I felt that Appellant’s kidnapping defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

Judge Ohlson’s plurality opinion agrees with my conclusion that there was a material but non-fatal variance.

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CAAF decided the Air Force case of United States v. Elespuru, No. 14-0012/AF, 73 M.J. 326 (CAAFlog case page) (link to slip op.), on Tuesday, July 15, 2014. The court finds that Appellant knowingly waived his multiplicity claim. Nevertheless, the court dismisses one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

Judge Ryan writes for a practically-unanimous court. Chief Judge Baker concurs in the result but dissents from the majority’s finding of waiver.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of abusive sexual contact upon a substantially incapacitated person, wrongful sexual contact, and assault consummated by a battery, in violation of Articles 120 (2006)  and 128. He was sentenced to reduction to E-1, confinement for 36 months, and a dishonorable discharge.

CAAF granted review to determine:

Whether Specifications 2 [abusive sexual contact] and 3 [wrongful sexual contact] of Charge I are multiplicious.

Slip op. at 2 (modification in original). Appellant’s victim fell asleep after a night of drinking. While she was sleeping, Appellant repeatedly touched her body. She awoke each time, told him to stop, and then fell back asleep. This cycle repeated four times.

The Government charged Appellant with abusive sexual contact (Article 120(g) (2006)) (an offense that involves engaging in sexual contact with someone substantially incapable of declining participation in, or communicating unwillingness to engage in, the sexual contact) and wrongful sexual contact (Article 120(m) (2006)) (an offense that involves unlawful sexual contact with another person without their permission). At trial, Appellant “submitted a Motion for Unreasonable Multiplication of Charges for Findings or Finding Charges Multiplicious for Sentencing.” Slip op. at 4. The Government responded “that the offenses were charged not as lesser included offenses, but in the alternative for exigencies of proof,” and that if Appellant were convicted of both offenses then the court “should merge the offenses for calculation of maximum punishment.” Slip op. at 4. Discussing the motion, Appellant’s defense counsel “conceded that the elements test for lesser included offenses was not met and that Appellant’s charge of wrongful sexual contact was not a lesser included offense of abusive sexual contact.” Slip op at 4.

Appellant was then convicted of both offenses and they were merged for sentencing. This merger meant that Appellant was sentenced only for the greater offense (abusive sexual contact). But on appeal Appellant asserted that the lesser offense should be dismissed because it is a lesser included offense of the greater offense. This assertion was directly contrary to the position advanced at trial.

And yet, CAAF grants Appellant the requested relief, dismissing the wrongful sexual contact offense. The court does so because “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof.” Slip op. at 9. And it does so unanimously. However, CAAF also finds that Appellant “knowingly waived his right to assert a multiplicity claim on appeal.” Slip op. at 8.

Chief Judge Baker dissents from the waiver decision, asserting that “it is not clear why the majority is reaching so hard to find waiver in a case in which the Court’s unanimous decision renders the issue moot.” Diss. op. at 3. But the Chief Judge’s quest for clarity is likely rhetorical because had the court accepted Appellant’s argument against waiver, it would have marked a major shift in the court’s precedent for claims of ineffective assistance of counsel.

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CAAF decided the Army case of United States v. Flesher, No. 13-0602/AR, 73 M.J. 303 (CAAFlog case page) (link to slip op.), on Tuesday, July 8, 2014. A fractured court finds that the record does not provide an adequate basis to demonstrate that the military judge acted within the bounds of his discretion when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker dissents, finding neither error nor prejudice. Judge Ryan also dissents, finding greater error than the majority, but she joins Chief Judge Baker in finding no prejudice.

The case presents a Daubert challenge to the Government’s presentation of a former SARC as an expert witness at trial and her testimony that in her experience sexual assault victims almost never fight back against their attacker, almost never scream or call for help, and generally first report the attack to a friend or family member and not to law enforcement. But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault. CAAF granted review of the following issue:

Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the military rules of evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

The appellant entered mixed pleas at a general court-martial in 2011. He pleaded guilty to, and was convicted of, two specifications of furnishing alcohol to a minor as an assimilated offense under Article 134. He pleaded not guilty to one specification of aggravated sexual assault in violation of Article 120 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted the appellant of the sexual assault, acquitted him of the burglary, and sentenced him to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The facts of the case involve a sexual encounter between the appellant and a 16 year-old girl, in her bedroom at her parent’s house, after she consumed alcohol at the appellant’s home with the appellant and the girl’s 15 year-old brother. The sexual encounter occurred while the girl’s brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Both the girl and the appellant testified at trial about the encounter: The appellant asserted a consensual encounter while the girl asserted the opposite. All agreed that the girl didn’t fight back against the appellant and that she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

At trial the military judge allowed the Government to call the former SARC (whose name was Ms. Falk) as an expert witness over the objection of the Defense. But the military judge did a poor job of addressing the Defense objections relating to Ms. Falk, and CAAF’s resolution of the case turns on this failure. Judge Ohlson finds that an early email from the judge “did not address the question of the admissibility of Ms. Falk’s testimony; it merely assumed it.” Slip op. at 6. He notes that “the military judge did not approach his evidentiary rulings in a methodical manner.” Slip op. at 17. And he concludes that:

Here, the military judge delayed ruling on the defense’s request for a continuance and the defense’s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense’s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk’s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing — despite the fact that the defense specifically and repeatedly requested one — or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge’s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.

Slip op. at 20-21 (emphasis added). In the absence of the significant deference normally afforded a trial-stage ruling permitting a witness to testify as an expert, Judge Ohlson and the majority conduct a de novo review of the admissibility of Ms. Falk’s testimony, employing the six-factor test from United States v. Houser, 36 M.J. 392 (C.M.A. 1993), where the court affirmed the admission of the testimony of a Government expert on rape trauma who did not interview the victim.

But this review begins with a clear caveat “affirm[ing] the appropriateness of allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent.” Slip op. 23. And Judge Ohlson repeatedly emphasizes that the court’s decision is based on the unique circumstances presented in this case.

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CAAF decided the Air Force case of United States v. Cimball Sharpton, No. 14-0158/AF, 73 M.J. 299 (CAAFlog case page) (link to slip op.) Friday, June 13, 2014. The court affirms the published opinion of the Air Force CCA that found Appellant’s conviction of larceny from the Air Force, by misusing her Government Purchase Card (GPC) to purchase various items for personal use, to be legally sufficient, and rejects Appellant’s argument that that the victim of the larceny was not the Air Force but was some other party (either the bank or the merchants).

Chief Judge Baker writes for a unanimous court.

Appellant was convicted, contrary to her pleas of not guilty, of multiple offenses including larceny from the United States Air Force by misusing her Government Purchase Card (GPC) to purchase various items for personal use. A GPC is basically a credit card billed directly to the taxpayers. Despite the not guilty pleas, Appellant did not contest the fact of her misuse of the card (she actually tried to enter a conditional plea of guilty). However, on appeal Appellant asserted that the victim of the larceny was not the Air Force, but was some other party (either the bank or the merchants). The Air Force CCA rejected this assertion in a published opinion, deciding that:

[T]he Government appointed the appellant as its representative to obligate Government funds through GPC purchases. US Bank, in turn, issued a GPC in the appellant’s name. The appellant did not steal the card from someone else and pretend to be a different person. Rather, she exceeded the scope of her agreement with the Government by using a card issued in her name to expend credit on unauthorized, personal purchases.

United States v. Cimball Sharpton, 72 M.J. 777, __, slip op. at 4-5 (A.F.Ct.Crim.App. 2013). CAAF then granted review of a single issue:

Whether the Air Force court abused its discretion in finding the evidence legally sufficient to support a conviction for larceny from the Air Force.

Chief Judge Baker’s opinion has the bottom line up front: “In this case, as in United States v. Lubasky, the victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue. 68 M.J. 260, 263-64 (C.A.A.F. 2010).” Slip op. at 2. The entire opinion is only nine pages long, and the most substantive discussion is found in just four paragraphs:

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CAAF decided the Air Force case of United States v. Paul, No. 14-0119/AF, 73 M.J. 274 (CAAFlog case page) (link to slip op.), on May 29, 2014. The court reverses the Air Force CCA’s decision that took judicial notice of the fact that 3,4-methylenedioxymethamphetamine (“Ecstasy”) is a controlled substance in order to affirm Appellant’s conviction for wrongful use of the drug in violation of Article 112a. CAAF concludes that “while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.” Slip op. at 15.

Chief Judge Baker writes for a unanimous court.

Appellant was tried by a special court-martial composed of a military judge alone and convicted, contrary to his pleas of not guilty, of multiple offenses including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”) on divers occasions. But the military judge who convicted Appellant did so despite the fact that the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. Nevertheless, the Air Force CCA affirmed the conviction by taking judicial notice of the fact that ecstasy is a controlled substance, finding it to be indisputable.

CAAF then granted review to determine the propriety of the CCA’s approach, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it took judicial notice of an element of a charge in violation of Garner v. Louisiana, 368 U.S. 157 (1961), and Military Rule of Evidence (MRE) 201(c).

Chief Judge Baker’s opinion begins by providing some context: The Government’s case included a civilian witness who testified that she saw “Appellant using ecstasy in his apartment on two separate occasions during the charged time period.” Slip op. at 3. Additionally, the Government introduced text messages obtained from Appellant’s cell phone that discussed using “e” and “rolling.” A footnote explains: “‘rolls’ and ‘rolling’ are common slang associated with ecstasy use.” Slip op. at 4 n.3. But while the parties focused their arguments to CAAF on the fact that the CCA took judicial notice of the scheduled nature of the substance, Chief Judge Baker’s opinion highlights a more foundational point:

Though the charge sheet stated that Appellant did “wrongfully use 3,4-methylenedioxymethamphetamine, a Schedule I controlled substance, commonly known as Ecstasy,” and in closing argument, the Government used a slide that read, “Accused used 3,4-methylenedioxymethamphetamine, commonly known as Ecstasy, Ex or E,” the Government did not enter anything into evidence indicating that Ecstasy is in fact 3,4-methylenedioxymethamphetamine.

Slip op. at 4 (emphasis added). Chief Judge Baker then explains just how wrong the military judge was in finding Appellant guilty of this offense:

The problem in the present case, as the CCA observed, is that the Government did not offer evidence at trial that Appellant used 3,4-methylenedioxymethamphetamine, that 3,4-methylenedioxymethamphetamine is a controlled substance, or that 3,4-methylenedioxymethamphetamine is commonly referred to as ecstasy. To the contrary, the Government offered legally sufficient evidence that Appellant used “ecstasy.” Ecstasy is neither a named prohibited substance under Article 112a, nor has it been listed on any schedule prescribed by the President. . . . In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.

As a result, no rational trier of fact could have found an essential element of the charged offense beyond a reasonable doubt, namely that Appellant used a Schedule I controlled substance.

Slip op. at 7-8. Chief Judge Baker then turns to “whether the CCA could take judicial notice of a fact necessary to establish an element of the offense that the Government failed to establish at trial.” Slip op. at 8. At the outset, CAAF clearly “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.” Slip op. at 10. In other words, CAAF says yes to appellate judicial notice. In this respect, I disagree with Phil’s post titled “No to appellate judicial notice?”

But there are two issues with what the CCA did in this case:

First, whether characterized as a question of fact or law, M.R.E. 201 in this case would require that the Appellant first have notice and an opportunity to be heard. . . . Second, and related, the CCA took judicial notice of an element of the offense.

Slip op. at 11.

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The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

Discussions about this case were had on CAAFLog with Zach’s, “Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused).”

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists.  “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.”  Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.”  Slip op. at 10.  The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.”  Slip op. at 11.  Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice.  Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams.  Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.

The end.

 

CAAF decided the Army case of United States v. Davis, No. 14-0029/AR, 73 M.J. 268 (CAAFlog case page) (link to slip op.), on Friday, May 23, 2014. The court affirms the findings and the decision of the Army CCA that found that that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt.

Judge Ohlson writes for a unanimous court.

Appellant was charged with assault with a dangerous weapon for pointing an unloaded .40 caliber semiautomatic pistol at a houseguest named Specialist S.S. The Specialist was fighting with his grilfriend, and Appellant became agitated and demanded that S.S. and his girlfriend leave Appellant’s property. Appellant then retrieved the pistol from inside his house and pointed it at S.S. while standing on his own front porch.

Appellant was tried by a general court-martial composed of officer members. The military judge instructed the panel on the affirmative defense of self-defense based on the possibility that Appellant was defending himself against an attack by S.S. The Defense did not object to this instruction, nor did the Defense request an additional instruction on the affirmative defense of defense of property based on the possibility that Appellant was defending his property from a trespassing S.S. The members then convicted Appellant of the lesser included offense of simple assault with an unloaded firearm in violation of Article 128. Appellant also pleaded guilty to two specifications of failure to go to his appointed place of duty, and the members sentenced him to a total of confinement for 90 days, reduction to E-4, and a bad-conduct discharge.

The Army CCA reviewed the case and concluded that the military judge erred in failing to sua sponte instruct the members on the affirmative defense of defense of property, but that the error was harmless beyond a reasonable doubt. CAAF then granted review of the following issue:

Whether the Army Court of Criminal Appeals erred in finding that the military judge’s failure to instruct on the affirmative defense of defense of property was harmless beyond a reasonable doubt.

Judge Ohlson begins by noting “that there are two distinct theories of defense of property implicated in this case — defense of property in the context of an imminent threat to the property, and defense of property in the context of preventing a trespass or ejecting a trespasser from the property.” Slip op. at 8-9.

Under the former theory, the accused must have had a reasonable belief that his real or personal property was in immediate danger of trespass or theft; and the accused must have actually believed that the force used was necessary to prevent a trespass or theft of his real or personal property. The accused’s subjective belief that the force was necessary must also be reasonable. In determining the reasonableness of the accused’s subjective belief as to the amount of force necessary, a panel must look at the situation through the eyes of the accused and consider the circumstances known to the accused at the time.

Under the latter theory, the accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave. A person or invitee who refuses to leave after being rightfully asked to do so becomes a trespasser and may not resist if only reasonable force is employed in ejecting him. However, a property owner may not “purposely provoke a disturbance” on his property and then use his ownership of the property as an excuse for an unnecessary assault in ejecting another person. If more force is used than is reasonably necessary to remove a trespasser, this force constitutes assault and battery.

Slip op. at 9-11 (citations omitted).

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