CAAFlog » CAAF Opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Annual End o’ Term stats to follow.

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

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

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

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

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

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

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

Prior coverage at the CAAFlog case page.

More to follow.

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

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

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

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

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

In yesterday’s decision CAAF rejects that challenge because:

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

Slip op. at 16.

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

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

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

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

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

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

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

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

CAAF granted review of a single issue:

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

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

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

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

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

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

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

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

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

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

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

CAAF then granted review of the following issue:

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

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

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

Slip op. at 7.

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

Judge Stucky writes for a unanimous court.

CAAF granted review to determine:

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

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

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

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

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CAAF decided the Air Force case of United States v. Nettles, 74 M.J. 289, 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, 74 M.J. 273, 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, 74 M.J. 247, 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, 74 M.J. 238, 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, 74 M.J. 230, 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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