CAAFlog » CAAF Opinions

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

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

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

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

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

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

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

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

CAAF granted review of a single issue:

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

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

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

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

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

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

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

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

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

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

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

CAAF then granted review of the following issue:

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

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

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

Slip op. at 7.

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

Judge Stucky writes for a unanimous court.

CAAF granted review to determine:

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

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

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

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

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CAAF decided the Air Force case of United States v. Nettles, __ M.J. __, No. 14-0754/AF (CAAFlog case page) (link to slip op.), on Monday, July 6, 2015. Declining to apply the requirement for physical delivery of a discharge certificate to reservists not on active duty, CAAF concludes that the appellant was validly discharged on the effective date of his self-executing discharge orders and was not subject to trial by court-martial, despite the fact that his command attempted to retain him in a military status pending trial. The court reverses the decision of the Air Force CCA and the appellant’s sexual offense convictions, and dismisses the charges.

Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue in this case:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

In 2013 the appellant (a captain in the Air Force Reserve) was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person (he was acquitted of an allegation of rape). He was sentenced to confinement for two months, a reprimand, and to be dismissed.

The charges related to events that occurred in May 2007, while the appellant was on active duty. Three months later, in August 2007, the appellant left active duty and entered the Air Force Reserve. Nearly five years later, in March 2012, he was notified that he was twice passed over for promotion to major and, as a result, was to be separated from the reserves on October 1, 2012, pursuant to 10 U.S.C. § 14505.

But in May 2012, the appellant was charged with the offenses at issue. Because of the charges:

The Secretary of the Air Force approved the recall of Appellant to active duty for the purposes of court-martial on July 18, 2012. The special court-martial convening authority’s staff judge advocate asked the Air Reserve Personnel Center (ARPC) to place an administrative hold on Appellant so that he would not be discharged from the service, but the ARPC never did so. Accordingly, a discharge order was generated on September 25, 2012, with an effective date of October 1, 2012.

Slip op. at 2. However, the discharge order was never formally delivered to the appellant because of a shortage of a special card stock used to print an accompanying certificate. Then, “in early November, 2012, the convening authority learned of the erroneously generated order, contacted ARPC, and ARPC rescinded the prior discharge order.” Slip op. at 3.

CAAF’s jurisprudence generally requires three things in order for a discharge to sever personal jurisdiction for a court-martial:

(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations to separate the member from military service.

Slip op. at 3-4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)). These requirements are “based on a civil personnel statute, 10 U.S.C. § 1168(a) (2012).” Slip op. at 4 (citing United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008)). The delivery requirement is at issue in this case. However, delivery cannot “be effective if it is contrary to expressed command intent.” Slip op. at 4. Further, delivery generally requires “actual physical receipt” of the discharge. Slip op. at 5. Under the facts of the case, neither command intent nor actual receipt favor the appellant.

But CAAF “decline[s] to employ the 10 U.S.C. § 1168(a) framework here.” Slip op. at 5.

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CAAF decied the certified Air Force case of United States v. Katso, __ M.J. __, No. 14-5008/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 30, 2015. CAAF holds that the testimony of an expert witness did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

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

The published opinion of the Air Force CCA provides the following facts:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified [appellee] as her attacker.

United States v. Katso, 73 M.J. 630, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and the appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was then reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial about the DNA results, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellee’s right to confrontation. The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

The Government certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

CAAF now reinstates the appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry. Judge Ryan’s majority opinion conducts a detailed Confrontation Clause analysis of the testimony of Mr. Davenport, however her ultimate conclusions are solidly based on CAAF’s own precedent. Specifically, as Judge Ryan explains:

In the absence of clear guidance from the Supreme Court, we are bound, within the constraints discernible from controlling precedent, to provide a clear rule for the military justice system. Fortunately, we already have a rule. This Court’s precedent makes clear that even when an expert relies in part upon “statements” by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion. Blazier II, 69 M.J. at 224-25.

Slip op. at 24. Applying this clear rule, Judge Ryan concludes:

Experts may “review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions.” Blazier II, 69 M.J. at 224. That is precisely what happened here.

Slip op. at 25.

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CAAF decided the Army case of United States v. Blouin, __ M.J. __, No. 14-0656/AR (CAAFlog case page) (link to slip op.), on Thursday, June 25, 2015. Sharply divided, CAAF narrowly concludes that the appellant could not have understood how the child pornography laws applied to the facts of his case. Accordingly, the court reverses the appellant’s pleas of guilty to wrongful possession of child pornography, and the published decision of the Army CCA.

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

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of possession of child pornography, as defined in 18 U.S.C. § 2256(8), as conduct prejudicial to good order and discipline in violation of Article 134. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

As described by the Army CCA in its published opinion affirming the appellant’s pleas, the appellant entered into a stipulation of fact that approximately 173 images discovered on his electronic devices were likely child pornography. But of those 173 images, the Government provided only twelve images to the military judge at the time of the appellant’s guilty pleas. Of those twelve images, the military judge determined that only three were actually contraband child pornography as defined in 18 U.S.C. § 2256(8). Judge Erdmann’s opinion explains that the military judge then found the appellant’s pleas provident as to those three images, ruling:

Counsel, having to [sic] review Prosecution Exhibit 4, I only find three images of child pornography. I find image 1229718342693.JPEG, image 1229720242042.JPEG, and image 122972147928l.JPEG meet the definition of child pornography. The balance of the images on Prosecution Exhibit 4 do not meet that definition. Given further inquiry, I do believe that the accused is guilty of the offense as charged and I stand by my findings. Although as to those three images, I think counsel would be wise to review [United States vs. Knox 32 F.3d 733 (3d Cir. 1994)], that it can be a lascivious exhibition even if the genitals and the pubic area are clothed. So, I stand by my findings.

Slip op. at 5 (modifications in original). The three images at issues are described in detail in the Army CCA’s decision. Each depicts a young girl posing provocatively in undergarments. None depicts sexual activity or full nudity.

Nevertheless, despite the absence of sexual activity, the images may still constitute child pornography as defined in 18 U.S.C. § 2256(8) if they involve a lascivious exhibition of the genitals or pubic area. Whether a particular image involves such an exhibition is subject to a six-factor analysis commonly known as the Dost factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). One of those factors is “whether the child is fully or partially clothed, or nude.” Id. And so the fact that the three images at issue in this appeal involve non-nude children is not necessarily dispositive of the issue of whether the images are child pornography.

Yet affirming the appellant’s pleas of guilty, the Army CCA went further and:

endorse[d the] reference to Knox in the Benchbook [and] offer[ed its] decision to establish precedent on a subject not yet directly addressed in a published opinion in our jurisdiction, and hold that nudity is not required to meet the definition of child pornography as it relates to the lascivious exhibition of genitals or pubic area under Title 18 of the United States Code or Article 134, UCMJ.

Slip op. at 5-6 (quoting United States v. Blouin, 73 M.J. 694, 696 (A. Ct. Crim. App. 2014)) (modifications in original) (emphasis added).

Knox refers to a series of decisions originating in the Third Circuit that analyzed the federal definition of child pornography: United States v. Knox, 977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S. 939 (1993) (Knox I); United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II).  Specifically, in Knox II the Third Circuit held that the “federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions.” 32 F.3d at 737. The Army CCA adopted the holding of Knox II, applied it to the images in this case, and affirmed the appellant’s pleas.

CAAF then granted review of a single issue:

Whether the military judge erred by accepting Appellant’s pleas of guilty to the specification of the charge where Prosecution Exhibit 4 demonstrated that the images possessed were not child pornography.

With yesterday’s opinion, Judge Erdmann leads a bare majority of CAAF to conclude not only that the military judge erred in accepting this appellant’s pleas, but also that the CCA erred in adopting Knox II. In so holding, CAAF seemingly declares that non-nude images can not qualify as lascivious exhibitions.

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CAAF decided the Navy case of United States v. Woods, __ M.J. __, No. 14-0783/NA (CAAFlog case page) (link to slip op.) on Thursday, June 18, 2105. The court concludes that the military judge erred in denying the appellant’s challenge of a member who initially believed that the military employs a guilty-until-proven-innocent standard. Finding implied bias, CAAF reverses the decision of the NMCCA and the appellant’s conviction.

Chief Judge Baker writes for a nearly-unanimous court. Judge Stucky concurs in the result, but he concludes that the member should have been excused for actual bias, not implied bias.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual assault in violation of Article 120, UCMJ (2006). He was sentenced to confinement for five months, total forfeitures, and a dismissal. The NMCCA affirmed the findings and sentence.

CAAF granted review of a single issue:

Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

More than half of Chief Judge Baker’s opinion is dedicated to reproducing portions of the member’s questionnaire, voir dire responses, and the military judge’s rulings on the appellant’s challenge. It begins:

in advance of Appellant’s trial, CAPT Villalobos completed a court-martial member questionnaire. In response to an open-ended question regarding her view of the military justice system, CAPT Villalobos provided the response at issue in this appeal:

[Q.] What is your opinion of the military’s criminal justice system?

[A.] There is not [a] perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission. It is a voluntary force and you come into the service knowing that you will be held to this higher standard[] and give up your civil rights.

Slip op. at 4 (marks in original). The defense challenge the member but the military judge denied the challenge, ruling in part that:

With respect to Captain Villalobos, I have specifically considered the liberal grant mandate and examined her answers for actual bias as well as implied bias. I am going to focus here for a minute on her answers to the member’s questionnaire pertaining to what the relevant burden of proof is in a court-martial. It’s absolutely the case that she did arrive at this court-martial under a misapprehension of what the burden of proof is at a court-martial. I don’t find that to be disqualifying. I evaluated her demeanor as she answered questions. When I asked her candidly “Did you — were you under the impression that that was the relevant standard in these cases,” and she says “Yes,” and she acknowledged that that was a misapprehension on her part.

Slip op. at 8.

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CAAF decided the Army case of United States v. Keefauver, __ M.J. __, No. 15-0029/AR (CAAFlog case page) (link to slip op.), on Friday, June 12, 2015. Extensively analyzing the requirements for a protective sweep, CAAF finds that the Government did not even attempt to meet those requirements in this case, and so the court holds that the sweep of the appellant’s on-base home was invalid. CAAF reverses the decision of the Army CCA and remands the case for further proceedings.

Judge Ryan writes for a unanimous court.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case involves a controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials.

The appellant moved to suppress the evidence seized during the search. The military judge denied the appellant’s motion, ruling in part that the search was a proper protective sweep. Specifically, the judge found that the:

agents could reasonably have believed “an individual or individuals who posed a danger to the agents may have been hiding in the residence” given the quantity of marijuana present and the inference that residents were engaging in drug distribution, as “[i]t is common knowledge that drug trafficking involves violence, including the use of weapons.” The military judge [also] concluded that [the stepson]’s hostile response to the agents’ announced intent to enter the house and conduct a search supported this belief.

Slip op. at 6-7. The appellant was convicted. On review, the CCA affirmed the judge, finding the sweep proper and also applying the doctrine of inevitable discovery. CAAF then granted review of a single issue:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Judge Ryan’s opinion for a unanimous CAAF dissects the law of protective sweeps and the agents’ rationale for the search, concluding that while a sweep in a situation like the one in this case is permissible, there was insufficient justification for a sweep in this particular case.

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CAAF decided the Navy case of United States v. Ward, 74 M.J. 225, No. 15-0059/NA (CAAFlog case page) (link to slip op.), on Thursday, June 11, 2015. The court holds that even though the convening authority violated Article 25 when he improperly excluded members on the basis of rank, and the Government committed a discovery violation by failing to disclose the exclusionary selection criteria to the defense (both violations being the law of the case as they were found by the CCA and not appealed to CAAF), the appellant was not prejudiced because the panel for his court-martial was fair in fact and in appearance. Finding the error harmless, CAAF affirms the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Erdmann writes for a unanimous court.

The appellant was an E-2 who was convicted, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fleeing apprehension, rape, and communicating a threat, in violation of Articles 95, 120, and 134. He was sentenced to confinement for 933 days and a dishonorable discharge.

Prior to the appellant’s court-martial, the convening authority (Commander, Naval Air Force Atlantic (COMNAVAIRLANT)) issued an instruction that required subordinate units to nominate personnel to serve on courts-martial, specifically requiring nominations in pay-grades E-7 through O-5. No members detailed to the court-martial were outside the range of E-7 through O-5. Rather, the panel “was comprised of one 0-4, one E-8, and 6 E-7s.” Slip op. at 5.

Congress established the criteria for member selection in Article 25 (10 U.S.C. § 825). Rank is not among those criteria. However, the appellant did not object to the composition of the panel at trial. Rather, after trial, when his defense counsel first learned of the convening authority’s exclusionary instruction, the appellant sought relief from the convening authority. The convening authority denied relief. On appeal, the CCA concluded that the convening authority’s actions did impermissibly exclude members based on their rank, but that this error was harmless. CAAF then granted review of Appellant’s claim that the CCA erred in finding the error harmless, with the following issue:

The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

Notably, the Government did not certify the CCA’s underlying finding of error, and so “the sole issue before [CAAF] is whether the violation of Article 25, UCMJ, as held by the CCA, prejudiced Ward.” Slip op. at 6.

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CAAF decided the Army case of United States v. Carter, 74 M.J. 204, No. 14-0792/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 10, 2015. Finding that there is no per se rule against an accused presenting evidence of unlawful pretrial punishment as mitigation evidence during the sentencing phase of a court-martial – even after the accused receives judicial credit for the same unlawful punishment – CAAF nevertheless holds that the military judge did not abuse her discretion when she prevented the appellant from introducing such evidence to the members in this case.

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

The 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 indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.

Article 13, UCMJ, prohibits the imposition of punishment before trial. At trial, the appellant and the Government agreed that the appellant should receive 25 days of confinement credit for pretrial restriction that constituted unlawful pretrial punishment in violation of Article 13 (the appellant initially sought 45 days of credit). Then, during the sentencing phase of the court-martial, the appellant sought to call a witness “to testify about the pretrial violations” as a matter in mitigation possibly justifying a lesser adjudged sentence. Slip op. at 4. The trial counsel objected on relevance grounds and the military judge sustained the objection. The judge “specifically based her decision on existing case law discussing [Article 15] nonjudicial punishment which, according to the military judge, is analogous to [Article 13] and should be interpreted to mean that defense counsel ‘has an option as to how to present that evidence; one of four ways.'” Slip op. at 4-5.

CAAF granted review to determine whether that ruling was error, with the following issue:

Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Chief Judge Baker finds that Article 13 “is distinct from NJP credit and should not be treated in the same way.” Slip op. at 9. He further finds that allowing an accused to receive credit from a judge for a violation of Article 13 while also using the underlying facts as evidence in mitigation “does not provide defense counsel two bites at the apple.” Slip op. at 12 (emphasis added). However, he comes to the puzzling conclusion that the military judge in this case did not abuse her discretion when she held the opposite: that allowing the defense to call the witness “was giving defense counsel ‘two bites at the apple.'” Slip op. at 12-13.

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CAAF decided the Navy case of United States v. Simmermacher, 74 M.J. 196, No. 14-0744/NA (CAAFlog case page) (link to slip op.), on Monday, June 8, 2015. Holding that the appellant’s urine sample was of such central importance that it was essential to a fair trial, that there was no adequate substitute for the sample after it was destroyed by the Government, and that the appellant was blameless in its destruction, CAAF applies R.C.M. 703(f)(2) and reverses the appellant’s conviction.

Judge Erdmann writes for a unanimous court.

The appellant was convicted contrary to her pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement and wrongful use of a controlled substance, in violation of Articles 107 and 112a, UCMJ. She was sentenced to reduction to E-3 and a bad-conduct discharge.

The appellant’s positive urinalysis was the result of a routine random testing that occurred while she was under investigation for allegations of child abuse (charges that were later severed from the 107 and 112a offenses). But despite that ongoing investigation, the Government did not preserve the urine sample for possible retesting beyond the standard one-year retention period for a positive sample. Instead, the sample was destroyed twelve days before the appellant was charged with the drug offense. The military judge then denied a defense motion to suppress the results of the urinalysis, instead giving the members an instruction that they may (but are not required to) infer that the evidence would have been adverse to the prosecution. Appellant was convicted and the NMCCA affirmed. CAAF then granted review of a single issue:

When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Drawing a bright line between the constitutional due process standard for lost or destroyed evidence and the provisions of R.C.M. 703(f)(2), Judge Erdmann explains that where the three prerequisites under R.C.M. 703(f)(2) are satisfied, “if a continuance or other relief cannot produce the missing evidence, [then] the remaining remedy for a violation of R.C.M. 703(f)(2) is abatement of the proceedings.” Slip op. at 14. Because the military judge failed to abate the proceedings in this case, CAAF reverses the finding of guilty and dismisses the charge of violation of Article 112a.

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CAAF decided the certified interlocutory Army case of United States v. Muwwakkil, 74 M.J. 187, No. 15-0112/AR (CAAFlog case page) (link to slip op.), on Thursday, May 28, 2015. The court unanimously affirms the trial-stage ruling by a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. CAAF rejects both issues certified by the Judge Advocate General of the Army, affirming the decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs in the result but writes separately to distinguish the Jencks Act (18 U.S.C. § 3500) from Rule for Courts-Martial 914.

Production of pre-trial statements by a witness is required by the Jencks Act, 18 U.S.C. § 3500, and the corollary Rule for Courts-Marital (RCM) 914. In this case, the Government called the alleged victim to testify at trial, but then produced only part of the recording of her pretrial testimony. The majority of the recording was lost by the Government in what the military judge determined was not an intentional act but “was certainly negligent and may amount to gross negligence.” 73 M.J. 859, 861 (A. Ct. Crim. App. Aug. 26, 2014) (quoting record).

Specifically, of approximately 2 hours and 15 minutes of testimony by the alleged victim at the Article 32 pretrial investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. Considering this, the military judge concluded that “the defense counsel does not have what he needs to adequately prepare for cross-examination of [the alleged victim],” and the judge felt that the only adequate remedy was to strike the entire testimony of the alleged victim. Id.

The Government promptly appealed under Article 62. The Army CCA denied that appeal and affirmed the judge’s ruling. The Judge Advocate General of the Army then certified two issues to CAAF:

I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.

II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

Rejecting the Government’s appeal and affirming the decision of the Army CCA, Judge Ohlson unravels the Government’s various arguments – that federal Jencks Act precedent doesn’t apply to courts-martial, that this is actually a discovery issue, that the accused should have litigated this issue pretrial rather than waiting until after the alleged victim testified, that the recording of the alleged victim’s testimony during the Article 32 pretrial investigation is not a statement, that the Government can not be required to produce something that is lost, and that the judge was required to find that the Government acted in bad faith prior to imposing the remedy of striking the testimony of the alleged victim – and CAAF concludes that the “military judge did not err or otherwise abuse her discretion in applying the provisions of the Jencks Act and R.C.M. 914 to the instant case.” Slip op. at 18.

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CAAF decided the Navy case of United States v. Castillo, 74 M.J. 160, No. 14-0724/NA (CAAFlog case page) (link to slip op.), on Monday, May 18, 2015. The court rejects Appellant’s two-fold challenge the Navy’s current requirement that its members self-report to military authority any arrest or initiation of criminal charges by civilian authorities. Finding that the Navy created the requirement in direct response to CAAF’s decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010), and rejecting Appellant’s hypothetical applications as insufficient to sustain a facial challenge to the regulation, CAAF confirms the validity of the requirement, affirming the decision of the Navy-Marine Corps CCA.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court improperly determined that [the] duty to self-report one’s own criminal arrests found in Office of the Chief of Naval Operations Instruction 3120.32c was valid despite the instruction’s obvious conflict with superior authority and the Fifth Amendment.

The Navy has long required that its members report offenses punishable under the UCMJ. See Article 1137, U. S. Navy Regulations; United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976) (discussing predecessor Article 1139); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (discussing both). The Navy has also enforced various requirements that members report matters related to their own potential misconduct. But the Navy-Marine Corps Court of Criminal Appeals invalidated one such requirement in United States v. Serianne, finding that an order for Navy personnel to self-report alcohol-related arrests by civil authorities compelled an incriminatory testimonial communication in violation of the Fifth Amendment and contrary to the then-existing language of Article 1137, U.S. Navy Regulations, and CAAF affirmed on the basis of Article 1137 without reaching the constitutional issue. 68 M.J. 580 (N-M. Ct. Crim. App. 2009),aff’d, 69 M.J. 8 (C.A.A.F. 2010).

After Serianne, the Navy revised Article 1137 to explicitly authorize regulations that “require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.” ¶ 2.3, ALNAV 049/10 (Jul. 21, 2010). Other regulations followed, including a change to the Navy’s Standard Organization and Regulations Manual to include the following self-reporting requirement:

Any person arrested or criminally charged by civil authorities shall immediately advise their immediate commander of the fact that they were arrested or charged.

¶ 4.c, NAVADMIN 373/11 (Dec. 8, 2011) (amending ¶ 510.6, OPNAVINST 3120.32C (2005), superseded by ¶ 5.1.6, 3120.32D (Jul. 16, 2012)) (available here).

Appellant ran afoul of this new requirement:

In February 2012, Appellant was arrested in Kitsap County, Washington for driving under the influence.3 She did not report the arrest to her command. Her command learned of the arrest during an unrelated visit to the local courthouse, during which one of her supervisors noticed her name on the court’s docket. She was subsequently charged with violating a lawful order, to wit, wrongfully failing to report the arrest, in violation of Article 92, UCMJ.

Slip op. at 7. Appellant challenged the legality of the requirement at trial and again on appeal at the NMCCA, asserting that the arrested-or-charged reporting requirement conflicts with Article 1137, U.S. Navy Regulations (superior regulatory authority), and that it violates the Fifth Amendment. Both arguments failed at trial and at the NMCCA, and now they fail at CAAF.

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CAAF decided the Air Force case of United States v. Torres, 74 M.J. 154 No. 14-0222/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 12, 2015. The court unanimously finds that the military judge erred in instructing the members on the defense of lack of mental responsibility when Appellant asserted the defense of automatism in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure. However, the court splits 3-2 to find this error harmless, affirming the findings, sentence, and the decision of the Air Force CCA.

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

CAAF granted review of a single issue:

Whether the military judge erred by denying the defense requested instruction.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

The aggravated assault specification alleged that Appellant assaulted his wife by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” Slip op. at 2. Appellant’s defense was that he suffered a seizure and his actions were involuntary. Specifically:

Appellant sought to show that he had an epileptic seizure on the morning of May 13, 2008, and that he thus was experiencing an altered state of consciousness when he assaulted his wife. Appellant further asserted that this altered state of consciousness rendered his actions involuntary, and argued that the Government had therefore failed to prove that his conduct “was done with unlawful force or violence” as required for aggravated assault.

Slip op. at 4 (emphasis in original) (citation omitted). Appellant’s defense counsel also asked the military judge to instruct the members that they must be “satisfied beyond a reasonable doubt that the accused, at the time of the alleged offense acted voluntarily” in order to convict him. Slip op. at 5 (quoting record).

However, the military judge refused to give the instruction requested by the defense. Rather, the military judge instructed the panel consistent with the affirmative defense of lack of mental responsibility, and “consistent with this affirmative defense, the military judge further instructed the panel that if it concluded that the Government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct.” Slip op. at 5.

CAAF holds that the military judge erred in giving this instruction, though it acknowledges that military law is not exactly clear on how to handle a defense of automatism:

Thus, as noted above, at the time of trial in the instant case, the state of the law was not particularly clear in regard to whether automatism should be viewed as potentially negating an accused’s mens rea, or potentially negating the actus reus, or both. What was clear, however, was that neither epilepsy nor automatism constituted a mental disease or defect and this Court has never held that the affirmative defense of lack of mental responsibility applies in these cases. Indeed, we find it was error for the military judge in the instant case to instruct the panel in that manner.

Slip op. at 7-8 (emphasis in original).

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