CAAFlog » CAAF Opinions

CAAF decided the Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings, in the capital Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.

Judge Ohlson writes for a unanimous court.

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Today CAAF issued a per curiam decision in United States v. Gray, __ M.J. __, No. 17-0525 (link to slip op.).

The opinion addresses a writ-appeal petition filed by Ronald Gray, who is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Finding no jurisdiction, CAAF dismisses the writ-appeal petition with prejudice. Judge Ohlson is recused and took no part in the decision.

In this post from September I discussed recent developments in the case, including the writ-appeal petition. The petition before CAAF challenges the Army CCA’s denial of a writ of error coram nobis earlier this year. 76 M.J. 579 (link to slip op.).

Coram nobis is “a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). In Denedo, the Supreme Court concluded that a CCA “has jurisdiction to entertain [a] request for a writ of coram nobis” in a court-martial where direct review was over and the conviction was final. 556 U.S. at 914 (emphasis added). This is because: 

respondent’s request for coram nobis is simply a further step in his criminal appeal, [and so] the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.

556 U.S. at 914 (marks and internal citation omitted). Furthermore:

Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment.

556 U.S. at 915 (emphasis added).

But CAAF reaches a different conclusion in Gray:

The threshold question is whether this Court has jurisdiction to entertain a request for coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.

Slip op. at 2.

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CAAF decided the interlocutory Air Force case of United States v. Pugh, __ M.J. __, No. 17-0306/AF (CAAFlog case page) (link to slip op.), on November 7, 2017. Reviewing the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Slip op. at 2. The Air Force CCA’s decision is reversed and the military judge’s ruling dismissing the charge is reinstated, with prejudice.

Judge Sparks writes for the unanimous court.

A general court-martial composed of officer members convicted Major (O-4) Pugh of:

willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.

United States v. Pugh, No. 2016-11, slip op. at 2 (A.F. Ct. Crim. App. Mar. 10, 2017) (discussed here). Pugh was acquitted of a separate allegation of wrongful use of marijuana. The members sentenced Pugh to be dismissed.

After the findings were announced, the defense moved to dismiss the specification asserting that AFI 90-507 is unlawful. The military judge reserved ruling, but ultimately granted the motion and then denied a prosecution motion for reconsideration. The Government appealed to the CCA, which reversed the military judge’s dismissal. CAAF then granted review of a single issue:

Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

Today’s opinion is short and fact-specific, with Judge Sparks explaining that “banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airmen from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.” Slip op. at 5.

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In this post from September I discussed the NMCCA’s decision in United States v. Tinsley, No. 201600083 (N-M. Ct. Crim. App. Jul. 6, 2017), in which the CCA affirmed a larceny conviction where the appellant was charged with stealing two dog kennels but the members convicted him of stealing only one kennel. The issue was that the members did not indicate which of the two kennels they found the appellant stole.

A two-judge majority of a three-judge panel of the CCA found the evidence sufficient to sustain a conviction to either kennel, and so affirmed. One judge dissented, however, on the basis that the members’ findings as to the kennel(s) are ambiguous, and so would set aside the portion of the conviction involving the kennel.

Last week CAAF agreed with the dissent:

No. 17-0579/MC. U.S. v. Michael R. Tinsley. CCA 201600083. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and in light of United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed, except for the words, “one kennel,” in Specification 1 of the Charge. The finding of guilty as to the excepted words is set aside and those excepted words are dismissed.

Last week CAAF summarily affirmed the Army CCA’s decision in United States v. Gould, No. 17-0507/AR:

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

This was the second trip to CAAF for this case. Way back in 2015 CAAF remanded the case for reconsideration in light of United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page). On remand, a two-judge majority of a panel of the CCA applied Blouin to find the the images of a child posing in underwear were not child pornography.

The JAG then certified three issues to CAAF:

I. Whether the Army Court of Criminal Appeals impermissibly exceeded the limitations of its authority on remand from this court by conducting a factual sufficiency review.

II. Whether the Army Court of Criminal Appeals erred by finding Specification 1 of Charge II factually and legally insufficient.

III. Whether nudity is a per se requirement for an image to constitute a “lascivious exhibition of the genitals or pubic area” in 18 U.S.C. § 2256(8)(a).

The first of these tracked a dissenting opinion at the CCA that I characterized as doubly wrong in this post discussing the certification. Dissenting from the CCA’s decision, Judge Wolfe asserted that CAAF’s remand deprived the CCA of its power of factual sufficiency review, and that the appellant had already received one such review (in the CCA’s first decision, that didn’t have Blouin to apply).

CAAF’s summary rejection of Judge Wolfe’s narrow view of the CCA’s power aligns nicely with our #4 Military Justice Story of 2016: Power to the CCAs!

But CAAF’s inability to give an advisory opinion means there is still lingering uncertainty about whether CAAF’s opinion in Blouin – in which the court rejected the application of United States v. Knox, 32 F.3d 733 (3d Cir. 1994) (Knox II) – goes so far as to hold that non-nude images can not qualify as lascivious exhibitions of the genitals or pubic area (making an image child pornography).

Yesterday – nine days after hearing oral argument – CAAF summarily reversed the Army CCA’s decision in United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), remanding the case for further consideration of the adequacy of the CCA’s grant of 180 days of confinement credit for dilatory post-trial processing:

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On further consideration of the granted issue, 76 M.J. 174 (C.A.A.F.2017), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012). In this review, the Court of Criminals Appeals will specifically address the following issue:

IN LIGHT OF THE FACT THAT THE COURT OF CRIMINAL APPEALS ISSUED ITS INITIAL OPINION OUTSIDE OF THE TIMEFRAME ESTABLISHED IN UNITED STATES v. MORENO, 63 M.J. 129 (C.A.A.F. 2006), AND ONE DAY AFTER APPELLANT WAS RELEASED FROM CONFINEMENT ON PAROLE, DID THE 180-DAY REDUCTION IN THE ADJUDGED SENTENCE OF CONFINEMENT AFFORD APPELLANT MEANINGFUL RELIEF FOR THE DILATORY POST-TRIAL PROCESSING?

The 180-days of credit was for the 641 days it took the convening authority to act on the result of trial. But it took the Army CCA 782 to issue that decision, and Gomzalez-Gomez was released from confinement one day before the CCA acted.

CAAF granted review to determine whether this deprived Gonzalez-Gomez of his right to due process. Yesterday’s summary reversal doesn’t address that issue. But it does seem to be an invitation to the Army CCA to do something dramatic.

CAAF decided the certified interlocutory Army case of United States v. Mitchell, 76 M.J. 413,No. 17-0153/AR (CAAFlog case page) (link to slip op.), on August 30, 2017. Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

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

Sergeant (E-5) Mitchell is charged with various offenses at a general court-martial. The prosecution wants to use evidence obtained from Mitchell’s cell phone. But the military judge suppressed the contents of the phone (and the phone itself) because military investigators continued to question Mitchell after he requested an attorney. The investigators had a search authorization for the phone, and had asked Mitchell for the passcode to the device. Mitchell (after requesting counsel) refused to tell them the passcode, but he entered the code into the phone and then entered it two more times to permanently disable the security features for the investigators. The prosecution appealed the suppression ruling under Article 62, the Army Court of Criminal Appeals affirmed the military judge’s ruling, and the Judge Advocate General of the Army certified three issues to CAAF:

I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Concluding that “the Government violated [Mitchell’s] Fifth Amendment right to counsel as protected by [Miranda v. Arizona, 384 U.S. 436 (1966)] and [Edwards v. Arizona, 451 U.S. 477 (1981)],” slip op. at 5, Chief Judge Stucky and the majority apply the plain language of Mil. R. Evid. 305(c)(2) (as rewritten in 2013) to suppress the contents of the phone because it is evidence derived from the interrogation after Mitchell requested counsel.

But Judge Ryan dissents because Mitchell merely entered his passcode into the device while he “declined to state or otherwise speak his passcode to the Government. He declined. There is nothing to suppress there.” Diss. op. at 3.

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CAAF decided the Marine Corps case of United States v. Forrester, 76 M.J. 389, No. 17-0049/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 16, 2017. Considering four separate convictions for possession of child pornography, where all four convictions involved the same contraband images but possessed on four separate electronic devices, a sharply-divided court concludes that the Manual for Courts-Martial creates a separate offense for each separate possession of the contraband, affirming the convictions, the decision of the Navy-Marine Corps CCA, and the approved sentence. The dissenters, however, find that the Manual is not so clear and would resolve the ambiguity in favor of lenity, merging the four convictions into one and remanding for reassessment of the sentence.

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

Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.

Forrester was originally charged with just seven specifications of wrongful possession of child pornography, but those specifications alleged date ranges beginning before and ending after the effective date of Executive Order 13593 (enumerating a child pornography offense under Article 134). To address this overlap, the military judge split the seven specifications into eleven, separating them into pre- and post-Order time periods. Then, after findings, the military judge merged the six convictions into four, each alleging possession of child pornography on a different electronic device: three external hard drives and a Google email account. The prosecution’s evidence proved that 23 images and one video, copies of which were found on each device, were contraband child pornography.

After findings, Forrester’s defense counsel moved for the four convictions “to be merged into a single specification for purposes of sentencing only,” arguing that the images and time periods were the same and “the only difference is the device on which it was charged.” Slip op. at 4 (quoting record). Forrester’s goal was to be sentenced for one act of wrongful possession, not four. The military judge denied the motion and the NMCCA affirmed, concluding that “each charged possession was a separately punishable transaction.” Slip op. at 5. CAAF then granted review to determine:

Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

Yesterday’s decision answers this question in the negative because “the President . . . intended to separately criminalize and punish possession of each ‘material that contains’ child pornography.” Slip op. at 14.

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CAAF decided the certified Army case of United States v. Gurczynski, 76 M.J. 381, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

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CAAF decided the Coast Guard case of United States v. Ramos, 76 M.J. 372, No. 17-0143/CG (CAAFlog case page) (link to slip op.), on Wednesday, July 19, 2017. The court finds that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so. Accordingly, the military judge erred in failing to suppress Ramos’ statement, and the Coast Guard CCA erred in affirming that ruling.

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

CAAF granted review to determine:

Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Boatswain’s Mate First Class (E-6) Ramos was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of one specification of conspiracy to manufacture and distribute marijuana, three specifications of making a false official statement, and one specification of wrongful possession of marijuana with intent to distribute. The panel sentenced Ramos to confinement for 90 days, reduction to E-3, and a bad-conduct discharge, and the convening authority approved the sentence as adjudged. The CCA disapproved two of the false official statement convictions (seemingly for factual insufficiency), but approved the sentence.

The convictions related to Ramos’ civilian wife’s efforts to start a business manufacturing marijuana under Washington State’s recreational marijuana law. Such a business, however, violates federal civil and military law. The business failed, and the wife’s business partner (named Hart) made threats. Ramos reported those threats to his chain of command and was then interviewed by CGIS. Despite the Government’s knowledge about Ramos’ connection to an unlawful marijuana business, the CGIS agent did not provide Ramos with an Article 31(b) warning during the interview. Ramos then made statements that were admitted against him during his court-martial.

The military judge denied a defense motion to suppress, concluding that there was “no requirement to give Ramos his Article 31(b) rights because [the agent] was not conducting a law enforcement or disciplinary inquiry, but was instead focused on ‘force protection.'” Slip op. at 4. The Coast Guard CCA affirmed, concluding that “the agents’ questions were focused on identifying and mitigating the threat.” Id.

In today’s opinion a majority of CAAF rejects this conclusion, finding instead that this case presents “a classic ‘mixed purpose'” of both force protection and a disciplinary inquiry. Slip op. at 7. The majority then concludes that the circumstances of the questioning “reflect[] conduct that appears intentionally designed to evade Ramos’s codal rights in furtherance of a law enforcement investigation. ” Slip op. at 8. It also rejects the operational context exception, finding that “there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings.” Slip op. at 11. But CAAF only reverses Ramos’ conviction of making a false official statement because “Ramos has not challenged his convictions on the drug-related offenses.” Slip op. at 11.

Judge Stucky’s dissent reaches the opposite conclusion on the purpose of the interview, finding that it “was not done for a law enforcement or disciplinary purpose” and so no warning was required. Diss. op. at 3.

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CAAF decided the Air Force case of United States v. Richards, 76 M.J. 365, No. 16-0727/AF (CAAFlog case page) (link to slip op.), on Thursday, July 13, 2017. The court holds that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search. Applying that rule to the facts of this case, CAAF affirms the military judge’s ruling that admitted the fruits of the search of the appellant’s electronic media, the decision of the Air Force CCA, and the appellant’s convictions.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards to confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.

The charges arose after a former participant in a Big Brothers of America program alleged that he was sexually assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship between Richards and another minor and involving electronic communications. That evidence supported a search authorization “for Appellant’s residence and person for items used to electronically communicate with [the minor].” Slip op. at 3. Numerous devices and hard drives were seized and sent to the Defense Computer Forensic Laboratory (DCFL) for extraction, whereby a software program “goes through the image – the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it pulls them all out and throws them into a directory on a new drive.” Slip op. at 4 (quoting examiner). “DCFL simply dumped all pictures and on-line chats from these [multiple] drives onto one big drive for review.” Slip op. at 4 (quoting a Special Agent). While searching the compiled extracted materials, the investigator discovered suspected child pornography and obtained new search authorizations. Subsequent investigation revealed more images, leading to Richards’ convictions.

Richards moved to suppress the fruits of the searches on the basis that the original search authorization was overbroad. That motion was rejected at trial and on appeal before the Air Force court, and is now rejected by CAAF as well.

Writing for the unanimous court, Judge Sparks avoids any bright-line rule for electronic searches except for the Fourth Amendment’s particularity requirement that prevents general searches, which are “a general exploratory rummaging in a person’s belongings.” Slip op. at 6 (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)). Instead, Judge Sparks explains that “the courts have looked to what is reasonable under the circumstances.” Slip op. at 6. And here, because the authorization was limited to evidence of communications with the minor (which could include images), it was reasonable.

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CAAF decided the Air Force case of United States v. Claxton, 76 M.J. 356, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.

Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.

Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.

The charges involved two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:

Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).

Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.

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CAAF decided the Navy case of United States v. Darnall, 76 M.J. 326, No. 16-0729/NA (CAAFlog case page) (link to slip op.), on Wednesday, June 28, 2017. Concluding that military criminal investigators did not have probable cause to apprehend Darnall, CAAF finds that the fruits of his subsequent interrogation should have been suppressed by the military judge. The findings and sentence are set aside, and the decision of the Navy-Marine Corps CCA is reversed, with a rehearing authorized.

Judge Sparks writes for a unanimous court.

Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of various offenses related to the importation, manufacture, and distribution of controlled substances (steroids and designer drugs). He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.

CAAF granted review to determine:

Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Darnall became a suspect when a U.S. Mail package containing dimethylone (a controlled substance analogue) was intercepted. The package was addressed to someone with Darnall’s name at an address in the town of Twentynine Palms, California, (the location of a large Marine Corps base where Darnall was stationed). Based on the address, Agent Pledger of the Marine Criminal Investigative Division (CID) suspected that the intended recipient of the package might be a servicemember, and he arranged “to have a counterfeit version of the package containing no real drugs delivered to Appellant at the regimental mailroom and to apprehend him after he picked it up.” Slip op. at 3. This occurred, and Darnall was apprehended (arrested), handcuffed, and interrogated, leading to the discovery of much incriminating evidence.

Darnall moved to suppress the evidence at trial on the basis that the apprehension was without probable cause. The military judge denied the motion and the the Navy-Marine Corps CCA affirmed. The CCA found that the military judge wrongly determined that Darnall previously lived at the residential address on the package, but the CCA concluded that even without this information there was probable cause to apprehend Darnall.

CAAF reverses. Judge Sparks finds that the CCA “provided minimal analysis” in its opinion and “unlike the lower court, we do not conclude that the facts . . . provide sufficient evidence to establish probable cause to apprehend.” Slip op. at 7. Rather, CAAF concludes that Agent Pledger’s actions were not “objectively reasonable law enforcement activity,” but instead was a “somewhat sloppy and apathetic investigation” leading to an apprehension “in clear violation of [Darnall’s] Fourth Amendment rights.” Slip op. at 10.

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CAAF decided the Army case of United States v. Commisso, 76 M.J. 315, No. 16-0555/AR (CAAFlog case page) (link to slip op.) on Monday, June 26, 2017. The court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.

Judge Ryan writes for a unanimous court.

Sergeant First Class (E-7) Commisso was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact, indecent viewing, indecent recording, indecent broadcasting, violating a lawful general regulation, obstructing justice, and making a false official statement, in violation of Articles 120, 120c, 92, 134, and 107, UCMJ. He was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge. The Army CCA set aside the convictions of violating a lawful general regulation and making a false official statement, but otherwise affirmed the findings and the sentence. But the CCA did not discuss the issue that CAAF granted to review, which is:

Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

In today’s unanimous decision Judge Ryan excoriates the members – two Colonels and a Lieutenant Colonel, all identified by name – for their “lack of candor” (slip op. at 2 and 12) and their “dishonesty” (slip op. at 11) during voir dire, concluding that had they been honest then Commisso “would have had at least a valid basis for challenging one or more of the panel members for cause.” Slip op. at 11.

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CAAF decided the Marine Corps case of United States v. Chikaka, 76 M.J. 310, No. 16-0586/MC (CAAFlog case page) (link to slip op.), on Tuesday, June 20, 2017. A short opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.

Judge Ohlson writes for a unanimous court.

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