CAAF today issued this 3-2 decision denying relief in Kreutzer.  Judge Stucky wrote for the majority.  Judge Erdamnn, joined by Chief Judge Baker, dissented.  Senior Judge Cox sat on the case and joined the majority, as did Judge Ryan.

The CAAF published a decision in United States v. St. Blanc, today.

Ryan writes for the court, with Baker concurring and dissenting in part.

We granted Appellant’s petition for review to consider whether Appellant’s decision to seek trial by military judge alone was knowing and voluntary when his counsel “misadvised” him of the maximum punishment that he faced.

We conclude that Appellant’s decision to choose trial by military judge alone complied with Rule for
Courts-Martial (R.C.M.) 903, and was knowing and voluntary.  We remand, however, for resentencing in light of United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).

CAAF today issued this order granting Technical Sergeant Brissette’s habeas petition and ordering that he be released from confinement immediately.

The NDAA, executive order, and other politics, have distracted me from the sober work of caselaw, but (at least by Monday) I will get back on the horse with this opinion analysis, argument recaps for the four oral arguments at CAAF this week, and whatever new business of interest the CCAs have to offer.

On Monday, CAAF released it’s fourth opinion of the term in United States v. Winckelmann, No. 11-0280/AR. Judge Ryan writes for a unanimous court, finding that the ACCA erred in affirming the finding of guilty (contrary to the appellant’s plea) of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). CAAF found that the evidence of a substantial step toward enticement of a minor was factually insufficient.

The factual and procedural background are set forth in the argument preview and recap (links below). The issue was whether (under and in the context of the facts of the case) the chat line “u free tonight” constitutes a substantial step. Judge Ryan writes that “there is an elusive line separating mere preparation from a substantial step.” Moreover, the fact that the members were not instructed on the definition of a substantial step (discussed during the oral argument) gets a relatively strongly-worded footnote. (Those last two sentences are big foot-stompers for anyone prosecuting violations of § 2422(b)).

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CAAF has released its fourth opinion of the term:  United States v. Winckelmann, No. 11-0280/AR.  CAAF reverses ACCA and favorably quotes Judge Ham the Great’s separate opinion below.  Judge Ryan wrote for a unanimous court.  And this is the second recent opinion in which Chief Judge Baker didn’t dissent to a Fosler remand.

In the third opinion of the term, Judge Stucky writes for a majority (with Judge Erdmann dissenting) in United States v. Goodman, No. 11-0389, __ M.J. __ (CAAF, 2011), finding that the military judge did not err in accepting a plea of guilty where the Appellant statements during the plea inquiry did not rise to the level of a mistake of fact defense to the charged offense of sexual harassment in violation of Article 92, UCMJ. However, CAAF remanded the case to the ACCA for Fosler consideration of other offenses charged under Article 134.

At CAAF, the Appellant “assert[ed] that his statements during the plea inquiry — that he thought his comments to PFC L were welcomed — raised the issue of mistake of fact, that because the military judge failed to secure a disclaimer of the defense an inconsistency in his guilty plea was unresolved, and therefore, his conviction should be set aside.”

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In its second opinion of the term, CAAF today reversed the Army CCA in United States v. Pierce, No. 11-0239/AR – 11-5004/AR, __ M.J. __ (CAAF, 2011), and found no error in the trial military’s instruction on an offense under 18 U.S.C. § 2422(B) that used the term “internet” instead of “any facility or means of interstate or foreign commerce.” Judge Ryan wrote for a unanimous court.

The instruction given to the members, which did not draw objection from the defense, was:

In the specification of Charge II, the accused is charged with the offense of use of the [I]nternet to solicit illicit sex which is a violation of federal law that has been assimilated under Article 134, UCMJ. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

One, that between on or about 25 October 2006 and on or about 18 December 2006, on divers occasions, that accused knowingly used the [I]nternet to attempt to persuade, induce, entice or coerce “Anastasia,” an individual under the age of 18 to engage in sexual activity, ascharged;

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Today CAAF issued the first opinion of the term, in United States v. Schumacher, No. 11-0257, __ M.J. __ (CAAF, 2011). Judge Stucky wrote for a unanimous court, finding that the trial military judge did not err in failing to give a self-defense instruction because the evidence did not reasonably raise the defense. However, the court remanded the case to the N-MCCA for analysis under United States v. Fosler, 70 M.J. 225 (CAAF, 2011).

The key reasoning follows:

Appellant’s assertion that a self-defense instruction was necessary because he believed that the individuals in his home were unknown intruders is untenable. Appellant was present when KD requested that her neighbor call the military police. The military police arrived four minutes later. During the interim period, KD was trying to persuade her husband to put away his guns because “I told him that, you know, well, obviously we both know the MPs are coming.” When the MPs arrived, they were dressed in full military police attire including badges. While in the process of waving the pistol around, Appellant stated “I’ve killed people before. It’s nothing for me to kill a few fucking MPs.”

Although not dispositive, trial defense counsel did not argue that a self-defense instruction should be given on an intruder theory at trial. See United States v. Hibbard, 58 M.J. 71, 76 (C.A.A.F. 2003) (“Although the defense presentation at trial is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence, we may take into account the absence of [such an] approach from the defense case when considering [whether the evidence reasonably raised an affirmative defense].”). In fact, trial defense counsel explicitly denied that the evidence could even make out such a theory. The military judge stated, “I don’t think there’s any evidence at all that by the time he brandished that weapon towards the MPs he didn’t realize they were MPs. Tell me if you disagree.” The defense responded, “I don’t disagree.”

Given the sequence of events, the physical appearance of the MPs, Appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge determined there was no evidence that Appellant reasonably perceived the infliction of wrongful bodily harm. In doing so, we hold that he did not err.

There are some dangers to deciding the same legal issue on the same day in different cases. For example, the court might inadvertently create an infinite loop of citation. Consider:

Where there is no waiver, and in the absence of an objection, we test the instructions provided by the military judge for plain error based on the law at the time of appeal. See Harcrow, 66 M.J. at 159 (“where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be plain at the time of appellate consideration”) (citations omitted); United States v. McMurrin, 70 M.J. 15, 18 (Slip Op. at 8) (CAAF, 2011).

United States v. Girouard, 70 M.J. 5, 11 (Slip Op. at 16) (CAAF, 2011)

And:

Additionally, we find that Appellee’s failure to object forfeited, rather than waived, any error. Girouard, 70 M.J. 5, 11 (Slip Op. at 16) (CAAF, 2011).

United States v. McMurrin, 70 M.J. 15, 18 (Slip Op. at 8) (CAAF, 2011)

In other words, someday appellate counsel will have the opportunity to write:

“Failure to object forfeited, rather than waived, any error.” United States v. McMurrin, 70 M.J. 15, 18 (CAAF, 2011) (citing United States v. Girouard, 70 M.J. 5, 11 (CAAF, 2011) (citing McMurrin, 70 M.J. at 18)).

I recently had reason to visit the legal office at Naval Air Station Whidbey Island.  I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world.  The base and surrounding community feel like a time capsule from 40 years ago.  EA-6B Prowlers—now being displaced by an F/A-18 variant—are still seen in the sky, along with the aging P-3, a maritime patrol version of a 1950′s turboprop airliner.  The air station is strewn with modest, semi-permanent buildings erected during the Second World War, making it look like a Beetle Bailey panel.  The base—and some local old-timer retirees—enthusiastically support one of the Navy’s few remaining officers’ clubs.  The surrounding town of Oak Harbor is small, dense with Navy vets, and fervently loyal to Naval Aviation.  I received only one or two aircraft noise complaints during my time there as SJA.  I also received a call from an angry citizen asking if the First Amendment required that the base exchange carry Jane Fonda’s autobiography.  Waves of change seem to just wash over Whidbey Island.

 My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff.  I didn’t sit in on the meetings, so I had some time.  While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it.  I’d seen these before, but hadn’t seen one in a long while.  I always liked these posters.  Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten.  Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.

As I scanned the punitive articles, I paused at Article 120.  Of course it was the pre-2007 version.   I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore.  New Article 120 might have to go on its own poster.  Past the punitive articles were the miscellaneous provisions.  It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment.  I don’t remember this statute being given effect anywhere I have ever served.  Perhaps there is an instructional block on the UCMJ in boot camp that checks this box.  But who tracks folks for their six month anniversary?  Has anyone seen a reenlistment accompanied by a UCMJ brief? 

My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law. 

I thought some more about the implications of a requirement to explain the law to those most affected.  The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge.  It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them. 

I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler.  Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that 

“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .

If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.

Look at Article 121, for example.  You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny.  It’s hard to define, hard to plead, and hard to prove.  But the 140 words that make up Article 121 do just fine.  You can read the article, understand it, and explain it.  Or look at the scant 104 words that comprise Article 128 assault.  It’s easy to understand.  If you’re a practitioner, it draws on things you already know.  Those 104 words get a lot done.  So if 104 words are good, the 2,835 words of Article 120 should be great, right?  I think we’ve all arrived at the same answer.  Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.”  It attempts to be self-sufficient.  But in its quest to become comprehensive, it became incomprehensible.  Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct.  Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice.  Even lawyers think it’s gobbledygook. 

The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem.  Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.”  Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.

I know Congress is having another crack at Article 120.  I hope they have Article 137 in mind when they draft the new new Article 120.  If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code.  It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused.  It’s a separate system that operates in a separate society.  I hope Congress remembers that this year.

CAAF began its analysis in United States v. Fosler with an understatement: “Historically, the express allegation of the terminal element of Article 134 has not been viewed as necessary.” United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F., 2011). Early publications did call for inclusion of a terminal element when charging an offense under the general article. See Captain P. Henry Ray, USA, Instructions for Courts-Martial and Judge Advocates, at 22 (1890). See also Colonel William Winthrop, USA, Military Law and Precedents, at 1022 (2d Ed., 1920). Over the following century this practice changed, until eventually omission of the terminal element received both Executive and Judicial sanction.

As we know, Fosler changed that.

The opinion was brazen, casting aside nearly 60 years of jurisprudence. See, e.g., United States v. Marker, 1 U.S.C.M.A. 393, (1952)). The majority finds this result compelled by its renewed interest in United States v. Schmuck, 489 U.S. 705 (1989), which adopted the elements test for lesser-included offenses under Fed. R. Crim. Proc. 31(c); yet it gives lip service to contemporaneous precedent that applied that rule to offenses under the UCMJ. See, e.g., United States v. Foster, 40 M.J. 140 (C.M.A.1994). This is in stark contract to the deliberateness of the Supreme Court in Schmuck. See Schmuck, 489 U.S. at 716 (“[the elements test] is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach.”).

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CAAF ruled 3-2 in United States v. Ellerbrock that a military judge abused her discretion in denying an accused the ability to cross-examine his accused victim about an extramarital affair she had had two-and-a-half years before.

The alleged victim, CL, had a long-term affair with a male roommate in Jacksonville, Florida, while her husband was stationed at Fort Stewart.  CL’s husband, who described himself as “hot tempered,” kicked down the door of his wife’s lover.  Nevertheless, at the time of trial, both CL and her husband described their marriage as good.

CL’s husband deployed, asking a family friend, Specialist Jackson, to look after his wife.  After CL put her child to bed one night, and while Jackson was at the home, CL consumed three to four shots of gin.  She had also been taking Xanax and Effexor. 

Several other friends came over, including appellant.  CL continued to drink.  Jackson and the other friends (except Appellant) left the house.  Eventually the friends went back into the apartment where they heard the bed squeaking and people moaning.  The lights came on to reveal CL and appellant have sex.  Someone told appellant to get off CL.  Appellant allegedly responded by telling the friends to leave because he was “almost done.”  The friends left.  Witnesses gave conflicting testimony as to the CL’s apparent level of intoxication and her reaction when the lights came on.  The next morning CL remembered having sex with Appellant, stating something to the effect of, “I can’t believe I did that” and “I fe[el] horrible.”

The defense sought to cross-examine CL about the prior affair, arguing that this information showed that CL had a motive to lie about having consensual sex with appellant.  CL wanted her marriage to continue, and, according to the defense, the previous incident, and her husband’s reaction, shed light on why CL might claim she had been raped.

The military judge excluded testimony about the previous affair under M.R.E. 412, finding that the probative value of the evidence did not outweigh its dangers to CL’s privacy interests, and that the dangers of unfair prejudice substantially outweighed the probative value of the evidence.  ACCA affirmed. 

CAAF reversed, in a fact-intensive opinion that has, in my mind, hints of factual sufficiency doubts throughout; reading the opinion, the case seems like the kind of sexual assault not usually won by the government.  The court held that it was a ”fair inference” that a second consensual sexual dalliances would be more damaging than one, and that the defense should have been able to explore the potential effect of the first affair on CL’s willingness to tell the truth.  

The case, in my view, doesn’t mark any sea changes in M.R.E. 412 law; it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.   

Judges Baker and Ryan dissented.

CAAF’s opinion in Ellerbrock is available here.  The court rules for the defense 3-2.  Judge Stucky wrote for the majority.  Judge Baker and Judge Ryan dissent separately.

I’m under the gun again tonight, so further commentary about the just-completed term will have to wait for another day.

Available here.  Judge Ryan wrote the majority opinion.  Judge Baker, joined by Judge Stucky, concurred in part and dissented in part.

The majority held that not only the cover memorandum, but also the specimen custody document, “were plainly and obviously testimonial.”  CAAF reversed NMCCA’s holding and remanded for a harmless error determination.

CAAF states:

Where, as here, an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information.

Thus, “recent case law from this Court and the Supreme Court requires an examination of individual statements that goes beyond Magyari.”

CAAF concluded that it was “plain and obvious error to admit the specimen custody document certification.” CAAF explained:

This certification is a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that the out-of-court declarant “certified to more than a machine-generated number” when the statements included affirmations regarding accuracy and compliance with laboratory protocol).  Such a formal certification has no purpose but to function as an affidavit. Because the declarant, “R. Flowers,” was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause.

The majority held that “we do not find that the stamps, signatures, and other notations on the chain of custody documents and data review sheets, or the results report summary are ‘plainly and obviously’ testimonial in the context of review for plain error.”  But the majority cautioned that “[a]n objection at trial, followed by more extensive development of the evidence and argument on its nature, might
tip the balance the other way in an appropriate case.”

Unfortunately I’m under the gun big time tonight, so either one of my CAAFlog colleagues will provide further details or I’ll offer more thoughts about the opinion later in the week.

US v. Baker, No. 11-6007/AR is available here.  US v. Lusk, No. 11-0166/AF is available here (our fearless leader was one of the counsel for the appellant).  Lusk is a per curiam decision remanding the case to the Air Force Court for a new decision addressing all aspects of Blazier and the instructions in the case.  Baker reverses the Army Court’s reversal of a military judge suppression finding in a purported “show up” photo lineup.  Erdmann, Effron, and Stucky in the majority and Baker and Ryan in dissent.

That leaves only Ellerbrock (Mil. R. Evid. 412) and Sweeney (application of Melendez-Diaz) to be decided.