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

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

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

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

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

The opinion continues, noting that there are (essentially) two main categories of 2422(b) cases: travel and non-travel. In non-travel cases, such as this one, where the appellant did not travel to meet the minor, “courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach.” Slip op. at 12. With a fact-intensive analysis (after a fact-intensive oral argument, and fact-intensive briefs), the count finds:

The evidence in this case is not legally sufficient to constitute a substantial step when measured against any of the benchmarks described. There was no travel, no “concrete conversation,” such as a plan to meet, and no course of conduct equating to grooming behavior. Viewing the question “u free tonight” in the light most favorable to the Government, it is “simply too preliminary” to constitute a substantial step.

Appellant engaged in a single chat with “Il ovean al 12” containing forty-one lines of text. Even though the chat was sexually explicit, Appellant did not discuss when and where they would meet, how they would find each other, what they would do when they met, or make any other specific arrangements to facilitate the rendezvous. In fact, when “Il ovean al 12” typed “gotta go,” Appellant did not attempt to persuade him to remain in the chat room or to make plans to meet that night or any other time. Appellant simply typed, “ok.” Rather than pursuing “Il ovean al 12,” Appellant ended the chat with a request that “Il ovean al 12” should “e-mail me u want to get together,” which occurred only after “Il ovean al 12” asked for his phone number.

Consequently, there was no evidence when the chat ended that either enticement or sexual activity with a minor would take place unless interrupted by independent circumstances.

Slip op. at 13-14 (internal citations omitted).

The opinion also addresses the ACCA’s affirmation of forfeiture of pay where the convening authority’s action did not actually approve that part of the sentence. However, since automatic forfeitures apply, the court found no prejudice.

Case Links:
• ACCA’s unpublished opinion
• Appellant’s brief
• Appellee’s (government) brief
• Blog post: Argument preview
• Oral argument audio
• Blog post: Argument recap
• CAAF Opinion
• Blog post: Opinion Analysis

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

Judge Stucky wrote that because violation of a general regulation is a general-intent offense, a mistake of fact must be both (subjectively) honest and (objectively) reasonable. He finds that in this case, the Appellant’s belief may have been subjectively honest, but it was not objectively reasonable, given the circumstances. He also gives this caution about rationalizations:

In analyzing Appellant’s case, we should keep in mind Judge Cox’s admonition not to

“overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior.

A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.”

United States v. Penister, 25 M.J. 148, 153 (C.M.A. 1987) (Cox, J., concurring). The military judge recognized Appellant’s rationalization and inquired further into the plea.

In a dissenting opinion, Judge Erdmann finds that there is evidence in the record to support the objective reasonableness of a mistake of fact, and that the trial military judge erred by failing to resolve the conflict, writing:

At no point during the additional inquiry did Goodman admit or agree that at the time of the conversations he was aware that NL found his comments unwelcome or that it was unreasonable for him to subjectively believe his comments were welcome. In other words, Goodman never disavowed that he subjectively believed at the time that his comments were welcome nor did he admit that his subjective belief was objectively unreasonable under the circumstances. Having failed to resolve the conflict between Goodman’s guilty plea and his mistaken belief at the time that his comments were not unwelcome, the military judge was required to explain the defense of mistake of fact and attempt to obtain a disclaimer of the defense.

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

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

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

Judge Ryan described the ACCA’s action as follows:

The ACCA nonetheless held that the military judge erred when she failed to include the language “any facility or means of interstate or foreign commerce,” in her instructions to the panel: “[T]he interstate commerce element was, in fact, omitted, rather than misphrased. The panel was never told, in any manner, that they must find the [I]nternet is a means or facility of interstate commerce in order for appellant to be guilty of the offense alleged . . . .” Pierce, No. ARMY 20080009, slip op. at 6.

The ACCA further held that this error was not harmless beyond a reasonable doubt under Neder v. United States, 527 U.S. 1 (1999), because (1) the issue was not actually litigated, and (2) the Government failed to present any evidence that the Internet satisfies the jurisdictional element. Id. at 8.

Judge Ryan then finds that the question of whether an activity constitutes a facility or means of interstate commerce is a question of law, and an exercise of statutory interpretation; one that in this case the trial military judge determined correctly when she determined that the Internet meets that definition. Moreover, Judge Ryan writes that “there is no support for the proposition that it is within the province of the members to either interpret statutory language or to traverse Commerce Clause jurisprudence, as would be necessary to determine whether the Internet was a constitutionally sufficient ‘facility or means of interstate . . .commerce.’” Pierce, __ M.J. at __, slip op. at 11.

Of note, this case involved a cross-certification by the Judge Advocate General of the Army. CAAF initially granted and specified issues related to the effect of the Army CCA’s finding of error in the instruction. The certified issue caused CAAF to reconsider (and reverse) the CCA’s underlying finding of error, avoiding the possibility of defeat for the government by application of the law-of-the-case doctrine.

The key reasoning follows:

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As we know, Fosler changed that.

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

Still, Fosler is part of a larger effort to return to the principles of the elements test adopted and then abandoned so long ago; to reconcile Foster, Teters, Hudson, and the many others that constitute the “Hydra” of lesser-included offenses under the Code; to remove the “outsize pair of spectacles.” See, e.g., United States v. Jones, 68 M.J. 465, 468-469 (C.A.A.F., 2010). But Fosler risks replacing the Hydra with a Medusa. The opinion had a virtual tornado effect, with 51 remands to the courts of criminal appeals that will force the ad hoc development of practical rules to address the myriad circumstances the court of appeals neglected when it ruled only that “because allegation of the terminal element is constitutionally required and the Government failed to satisfy that requirement here, the military judge’s decision to deny Appellant’s motion to dismiss was in error.” Fosler, 29 M.J. at 233.

Since the court of appeals decided Fosler on 8 August, the CCAs analyzed and applied the case six times (by my count – please let me know if I missed any), all unpublished. The breakdown is five N-MCCA cases, and one ACCA case, as follows:

• United States v. Thomas, No. 20100463 (A.Ct.Crim.App., 24 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Gibson, No. 201000669 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Lonsford, No. 201100022 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted contrary to pleas) – Reversed
• United States v. Leubecker, No. 201100091 (N.M.Ct.Crim.App., 13 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Scaringello, No. 201100192 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Walton, No. 201000508 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted contrary to pleas) – Reversed

Edited to add: I overlooked the fact that the specification at issue US v. Thomas (ACCA) actually did allege the terminal element, but was potentially defective in other respects, so that case does not belong on the list. The total is 5 cases, all NMCCA.

The bright line in these cases is clear: where the accused pleaded Guilty to a defective Art. 134 specification, the conviction is affirmed based on the reasoning of United States v. Watkins, 21 M.J. 208 (C.M.A., 1986); where the accused pleaded Not Guilty, the conviction is reversed based on Fosler.

Watkins held that without a showing of prejudice (i.e., a misled accused or double jeopardy concerns), a conviction pursuant to a plea of guilty, first challenged at appeal, will not be reversed for a defective specification unless the specification is so defective that it “cannot within reason be construed to charge [the] crime.” Watkins, 21 M.J. at 210. This Watkins exception to the Fosler rule is perfectly reasonable. An accused who voluntarily and accurately pleaded guilty pursuant to a pretrial agreement, and enjoyed the benefit of that agreement, and who can show no prejudice, undoubtedly understood the offense with which he was charged (i.e., the terminal element was necessarily implied), and no justiciable interest is served by reversing that conviction on technical grounds. However, in breathing new life into this rule, the Army and Navy-Marine Courts of Criminal Appeals are not pitting the reasonableness of Watkins against the reasoning of Fosler.

The Fosler majority emphasized that the three clauses of Art. 134 are “distinct and separate,” and that:

“an accused must be given notice as to which clause or clauses he must defend against. As [the court] explained in the context of a guilty plea: ‘[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.’” Fosler, 70 M.J. at 230 (quoting United States v. Medina, 66 M.J. 21, 26 (C.A.A.F., 2008)) (second and third alterations in original).

This reasoning appears to eliminate the Watkins exception, but Medina (which held that Art. 134 clause 1 and 2 offenses are not necessarily LIOs of clause 3 offenses) is not so broad as Fosler makes it appear. “[In Medina], Appellant was not advised during the plea inquiry that in addition to pleading guilty to the incorporated offenses under 18 U.S.C. §§ 2251 and 2552A, he was by implication also pleading guilty to Article 134(2) UCMJ, offenses.” Medina, 66 M.J. at 27. But in Watkins, the accused was “informed separately of the elements of each … offense by the military judge… . The military judge personally determined the accused’s understanding of the law in relation to the facts … [and] the accused here successfully completed an exhaustive providence inquiry.” Watkins, 21 M.J. at 210. Medina and Watkins present complementary analysis of the fundamental principle that the accused must understand the full meaning and effect of his plea for it to be provident. Fosler doesn’t change that at all.

This makes Fosler a case with a very short lifespan. Prosecutors have already begun to include terminal elements in specifications under clause 1 and 2. Once the present backlog of cases is resolved (presumably by the application of a few bright lines, and a handful of retrials), the need to apply Fosler will be rare, and the next edition of the Manual for Courts-Martial should eliminate application beyond. The post-Jones landscape remains easy. So far, nobody is turning to stone.

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

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

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

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

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

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

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

Judges Baker and Ryan dissented.

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

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

CAAF states:

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

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

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

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

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

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

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

While rejecting a facial constitutional challenge to MRE 412, the majority opinion is critical of its language, which creates a danger of excluding required evidence:

We hold that the balancing test in Military Rule of Evidence (M.R.E.) 412(c)(3) is not facially unconstitutional. However, its current iteration — which purports to balance the “alleged victim’s privacy” against the probative value of the evidence — is needlessly confusing and could lead a military judge to exclude constitutionally required evidence. The “alleged victim’s privacy” interests cannot preclude the admission of evidence “the exclusion of which would violate the constitutional rights of the accused.” See M.R.E. 412(b)(1)(C). We interpret M.R.E. 412 to preclude the exclusion of any constitutionally required evidence.

The majority reasons:  “Although Congress has authorized the President to prescribe the rules of evidence for courts-martial, M.R.E. 412 cannot limit the introduction of evidence that is required to be admitted by the Constitution.”  Gaddis, No. 10-0512/AR, slip op. at 10-11 (internal citation omitted.  The majority noted that in some cases, M.R.E. 412 could result in an unconstitutional limitation on defense evidence:  “The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy.  In those circumstances, the test would be unconstitutional as applied.”  Id., slip op. at 11-12.

The Court explained that “because of the confusing structure of M.R.E. 412, the test has the potential to lead military judges to exclude constitutionally required evidence merely because its probative value does not outweigh the danger of prejudice to the alleged victim’s privacy, which would violate the Constitution.”  Id., slip op. at 12.  The majority continued, “And the test is a problem of our own devise, since it was enacted in response to this Court’s decision in Banker.”  Id.; see United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004).

In what appears to be an invitation to the President to revoke the 2007 amendment to M.R.E. 412, the majority continued, “M.R.E. 412 cannot limit the introductino of evidence required by the Constitution — although the text of the rule seems to permit such a limitation.  And the explanation in Banker — suggesting that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule — is simply wrong.”  Gaddis, No. 10-0512/AR, slip op. at 17 (internal citation omitted).  “The purposes of M.R.E. 412 are served by the rule itself, which prohibits all evidence of an alleged victim’s sexual behavior or predisposition unless, for example, it is constitutionally required.”  Id., slip op. at 17-18.  “If after application of M.R.E. 403 factors the military judge determines that the probative value outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.”  Id., slip op. at 18.  “Likewise, if a military judge determines that the evidence is not constitutionally required, the military judge must exclude the evidence under M.R.E. 412 — regardless of how minimal the alleged victim’s privacy interest might be — because it does not fall under an exception to the general rule of exclusion.  At best the balancing test under M.R.E. 412(c)(3), as currently written, is a nullity with respect to the constitutionally required exception set out in M.R.E. 412(b)(1)(C); at worst it has the potential to cause military judges to unconstitutionally exclude evidence that is constitutionally required to admit evidence that is not.”  Id.

The majority went on to hold that the evidence that the defense sought to admit in this case wasn’t constitutionally required and was thus properly excluded under M.R.E. 412.

Fosler began, as many adultery cases do, as a contested rape case.  The accused was a lance corporal and a drill instructor at the Rota, Spain NJROTC when he was accused of sexually assaulting a sixteen-year-old high school student.  The case ended, as many of these cases do, with an acquittal of the Article 120 charge and a conviction for adultery.  At the conclusion of the government’s case in chief, the accused moved to dismiss the adultery charge (mistakenly under R.C.M. 917 rather than R.C.M. 907) for failure to state an offense.  The military judge noted that the specification was based on the sample specification in the Manual and denied the motion.  She instructed the members that they could convict the accused if they found the conduct to be prejudicial to good order and discipline or of a nature to bring discredit to the service. 

Judge Stucky, joined by Judges Erdmann and Ryan, acknowledged at the outset that longstanding precedent permitted omission of the terminal element from Article 134 specifications, and that the sample specifications in the Manual typically do not contain the terminal element.  Changes in the legal landscape, beginning with the Supreme Court case of Schmuck v. United States, 489 U.S. 705 (1989), and continuing through the Jones line of cases involving pleadings and LIOs, drove the break from precedent.  Both the majority and the dissents framed the decisional issue the same way: does the language in the sample specification necessarily imply the terminal element of Article 134 adultery?  To decide if the sample specification implied the terminal element, the court considered the language of wrongfulness, the possibility that adulterous conduct itself implies the terminal element, the force of historical practice and pleadings, and R.C.M. 307′s general provision that elements may be necessarily implied, asking if each, alone or together, implied the terminal element of Article 134.  The majority also took into consideration that the terminal element in an Article 134 charge may be met in three distinct ways; that an act might be prejudicial to good order and discipline without being service discrediting, and vice-versa.  The majority found that the sample specification does not necessarily imply the terminal element, and dismissed the charge and specification for failure to state an offense.

Chief Judge Effron and Judge Baker considered essentially the same factors as the majority, but each dissented.  Judge Baker called the holding a potential “sea change in practice and law” and correctly pointed out that other charges, such as larceny, traditionally rely on pleadings much less definite than the sample specification for adultery.  Judge Baker took the majority to task for leaving so many questions unanswered:  What will happen to the host of Fosler trailers (45 by Judge Baker’s count)?  What about guilty plea cases, since an accused can’t be convicted of a specification that isn’t an offense?  How could waiver apply?  Will this lead to several decades worth of cases being revisited on error coram nobis?  And, almost breathlessly, “[h]as Article 134, UCMJ, lost its capacity to serve as a  . . . fair and predictable tool to uphold good order and discipline? . . . Is Parker v. Levy . . . still good law?” 

Well.  I don’t know about all that.  But he’s right to marvel at the venerable century oaks of case law precedent uprooted and tossed aside, red Lexis stop signs twisted around their trunks.  And who knows what’s left of the 45 Fosler trailers.  (I know.  I should stop.)   I’m not sure it’s going to be total devastation, though; the guilty plea trailer next door to Fosler could miraculously emerge unscathed, in spite of it all.  My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–and our practice will come back down more or less on its foundation.  Remember Prather?  You might not.  Lots of broad language that kind of blew itself out in Medina.  Time will tell.

Judge Stucky wrote for the majority, joined by Judges Erdmann and Ryan.  Chief Judge Effron and Judge Baker dissented.

After being convicted by members, the accused called three witnesses who opined that there was still a place for him in the Army.  The government rebutted this testimony with the testimony of no fewer than five witnesses, three of whom both ACCA and CAAF had no problem finding lacking a proper foundation for an opinion of SFC Eslinger.  But the testimony went largely unobjected to, and CAAF was unwilling to find plain error or prejudice in the three-year confinement and dismissal sentence.

CAAF noted that when the government rebuts “retention evidence” it can walk a thin line between rebutting the accused’s evidence on one hand, and urging the appropriateness of a punitive discharge on the other.  CAAF also noted that it is important for the government to avoid exerting unlawful command influence when command leadership figures are used to made the case.      

Judges Erdmann and Effron dissented, stating that they lacked confidence that the members would have so severely punished the accused, an 18-year career soldier, absent the foundationless opinions of the government witnesses.

I. WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13, UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE.

II. WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED SENTENCE TO CONFINEMENT.

(Note: The AFCCA affirmed the findings and sentence in a per curiam opinion in Oct, 2010).

The Court of Appeals found that R.C.M. 305(k) does not limit the remedies available under Article 13, UCMJ, and that meaningful relief for illegal pretrial confinement is required, and returned the case to the CCA for a new Art. 66 review to determine if the circumstances warrant additional sentence relief.

Factual Background

Airman First Class Zarbatany, Jr., was convicted pursuant to his pleas of two specifications of unauthorized absence, two specifications of wrongful use of cocaine, and two specifications of wrongful use of marijuana, and was sentenced to a bad-conduct discharge, six months of confinement, forfeiture of all pay and allowances, and reduction to E-1. As a matter of clemency, the forfeitures were disapproved by the convening authority.

Prior to his conviction, Airman Zarbatany was held in pretrial confinement at a civilian facility in Anchorage, AK (the Anchorage Correction Complex (“ACC”)), pursuant to a Memorandum of Agreement (“MOA”) between the government and the ACC, because no military confinement facility was available. Zarbatany was held at the ACC for 119 days, during which time he was subjected to extensive violations of the terms of the MOA, many of which amounted to maltreatment [my characterization -zds]. The military judge awarded Zarbatany 4-for-1 credit, in addition to the 1-for-1 credit, for the time spent in the ACC, ruling:

[T]he court is specifically ordering four-for-one credit for the entire time [Appellant] has been in confinement.  This is due to the continuing nature of the issues at ACC, including housing post-trial and serious offenders of a civilian nature with the accused and, very importantly, ignoring his claims and his requests for mental health care.

The court specifically finds the conduct of his unit appalling, that his commander has abdicated his role as a commander in ensuring his troop is taken care of and that troop’s family is taken care of.

The court is very tempted to provide ten-for-one credit solely on the mental health issue considering this installation’s notice of the seriousness of mental health issues.

Zarbatany, __ M.J. __  (Slip op. at 9) (emphasis added).

The credit was applied against the adjudged confinement (180 days), and Zarbatany was released from confinement at the conclusion of trial with 415 days of excess confinement credit.

Of note, Zarbatany entered mixed pleas at a members GCM, but the members were not advised of the illegal pretrial confinement during sentencing (Slip op. at 11). There’s no explanation for why the members weren’t so advised. Additionally, during clemency, Zarbatany requested disapproval of the BCD, in part due to the “onerous” nature of his pretrial confinement; that request was denied.

In its per curiam opinion, the CCA held that “the convening authority credited the appellant with the days awarded by the military judge and disapproved the adjudged forfeitures, leaving no other form of punishment to which the credit could properly apply.” Zarbatany, 2010 CCA LEXIS 354, at *2, 2010 WL 3981672, at *1.

Majority Opinion

The Court of Appeals summarized the arguments of the parties as “a credit-conversion issue under R.C.M. 305(k).” Zarbatany, __ MJ at __ (Slip op. at 13). However, CAAF found “two threshold questions before one gets to the application of R.C.M. 305(k):  (1) What relief is available as a matter of law for violations of Article 13, UCMJ, as occurred here; and (2) is meaningful relief legally required to be awarded, and if so, in what circumstances?” Id.

In answering the first question, CAAF found that “the lower court was correct in stating that R.C.M. 305(k)’s plain language excludes a punitive discharge from permissible applications of illegal confinement credit under the rule.” Id. at 16. However, the court went further, finding that “this Court has never held that R.C.M. 305(k) is the exclusive remedy for Article 13, UCMJ, violations.  To the contrary, our case law explicitly recognizes that certain circumstances may warrant other relief.” Id. at 17 (emphasis added). Accordingly, courts must consider other relief, such as disapproval of a punitive discharge or dismissal of the charges, if the circumstances warrant.

As to the second question, whether meaningful relief is legally required, CAAF ruled that “meaningful relief for violations of Article 13, UCMJ, is required, provided such relief is not disproportionate in the context of the case, including the harm an appellant may have suffered and the seriousness of the offenses of which he was convicted.” Id. at 21. Unclear on whether the CCA properly considered all possible remedies for meaningful relief, CAAF returned the case to the CCA for further review.

Judge Stucky’s Dissent

In a dissenting opinion joined by Judge Ryan, Judge Stucky objects to the majority’s reasoning based on (1) a more deferential standard of review of the decision of the CCA, (2) a determination that the court of appeals can itself decide meaningfulness of relief (finding that Zarbatany received meaningful relief, under the circumstances of this case, by serving no post-trial confinement and making no forfeitures), and (3) objection to the discussion of whether R.C.M. 305(k) limits available remedies under Art. 13 as unnecessary to the resolution of this case. The dissent would have affirmed the CCA.

Factual Background

Airman First Class Schuber participated in a random urinalysis on 1 December 2009, testing positive for meth/amphetamine. He provided a second sample on 21 December 2009, which tested positive. Two additional samples submitted on 26 January 2010 were also positive.

On 10 February 2010, Schuber was placed in pretrial confinement. He provided two additional urine samples, both of which tested positive on 26 February 2010. Charges were preferred on 10 March 2010.

Schuber made multiple requests for a speedy trial, and requested reconsideration of his pretrial confinement, which was granted on 22 April 2010. After his release from confinement (which lasted for 71 days), Airman Schuber was restricted to the base, but he was permitted to depart on a 3-day pass to return to his hometown, as his grandfather had died and he had missed the funeral. He returned after three days without incident.

Schuber was arraigned on 2 June 2010, and on 28 June 2010 (the first day of trial) the military judge granted his motion to dismiss for lack of a speedy trial, noting that 138 days had passed since the initial imposition of pretrial confinement, and that “it took 75 days to refer the most basic of crimes …  Given the chronology of this case, I find the government’s actions to be negligent.” Schuber at __ (Slip Op. at 6). The CCA disagreed, finding that the trial judge failed to adequately consider the government’s proffered explanation for the delay, and questioning the sincerity of the speedy trial requests, which were submitted with discovery requests.

Majority Opinion

The Court of Appeals began its analysis by distinguishing between “restriction” and “arrest,” deciding that Schuber’s post-confinement restriction did not amount to “arrest.” The count then determined that once Schuber was placed on restriction (not amounting to arrest), this “removed the particular harm Article 10, UCMJ, was intended to address … Therefore, we conclude that Appellant’s restriction did not amount to an arrest under Article 10, UCMJ, and that for the purposes of Article 10, UCMJ, he was subject to seventy-one days of “arrest or confinement.’” (Slip op at 15-16).

The court then determined that the 71 days of pretrial confinement, in the context of this case, was not facially unreasonable under Article 10.

Judge Erdmann’s Dissent

In a dissenting opinion, joined by Chief Judge Effron, Judge Erdmann disagreed with the majority that Schuber’s restriction did not amount to “arrest,” but found no prejudice and concurred in the result. In concluding that the restriction was tantamount to arrest, the dissent noted that “a military judge is presumed to know and apply the law correctly.”  (Dissent op. at 2) (citing United States v. Raya, 45 M.J. 251, 253 (CAAF, 1996)).

The dissent also did not find clear error by the trial judge in determining that “in looking at the proceeding as a whole, the government did not expeditiously move this case along,” and took exception to the characterization of the speedy trial requests, which were included with discovery requests, as less than sincere (Dissent op. at 7-8).

Finally, the dissent applied the four-factor test set forth in Barker v. Wingo (407 U.S. 514, 530 (1972)) for Sixth Amendment speedy trial violations (the majority found that a delay of only 71 days did not trigger the full analysis). The factors are: “(1) the length of delay; (2) the reasons for the delay; (3) whether appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” (Dissent op. at 5) (citing Barker, 406 U.S. at 129). The fourth prong is further divided into three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”  (Dissent op. at 8 ) (citing Barker at 532). Analyzing these interests, the dissent found that while Schuber suffered some “anxiety,” he did not suffer prejudice sufficient to trigger the protections of Article 10, UCMJ.

The case concerns the manner in which the prosecution proves that service discrediting element of an Article 134 offense.  Here’s Judge Stucky’s BLUF synopsis of the holding:

We hold that evidence that the public was actually aware of the conduct is not necessarily required. Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces.

The opinion elaborates:   “Whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from any particular course of action.”

Addressing Article 134(2) specifically, the majority observed: 

The focus of clause 2 is on the “nature” of the conduct, whether the accused’s conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known. The statute, which requires proof of the “nature” of the conduct, does not require the government to introduce testimony regarding views of “the public” or any segment thereof. The responsibility for evaluation of the nature of the conduct rests with the trier of fact. . . .  [T]he degree to which others became aware of the accused’s conduct may bear upon whether the conduct is service discrediting, but the statute does not establish a requirement that the accused’s conduct must in every case be in some respect public knowledge.

The majority remanded for NMCCA to conduct a new factual sufficiency review in light of the standards it articulated.

In dissent, Judge Ryan concluded that “[b]ecause the Government failed to present either evidence or argument on the element of service discredit and the military judge may have applied pre-Miller law that some conduct is per se service discrediting, I would set aside the sentence and the finding of guilty on the child pornography charge and authorize a rehearing.”

The defense raised the issue of the supervisory judge’s conduct post-trial and requested clemency as a result.  At the SJA’s recommendation, the CA agreed with the clemency request.

In a majority opinion by Judge Erdmann, CAAF today held that the supervisory judge’s conduct was improper but didn’t result in prejudice.  Judge Ryan concurred in the result.

The majority held that the supervisory judge’s “communications with the trial counsel concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters and it was plain and obvious error for her to initiate those ex parte communications with trial counsel during the trial.”

The majority also concluded:

A reasonable person knowing all the circumstances would have observed [the supervisory judge] privately concurring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations.  [The supervisory judge's] course of conduct under the circumstances created an appearance that neither she nor [the trial judge] was impartial.

CAAF, however, found no material prejudice to the appellant’s rights, relying in part on the post-trial clemency granted at the defense’s request.  CAAF also concluded that there was no need to reverse the outcome to preserve the public’s confidence in the military justice system.

Concurring separately, Judge Ryan questioned why the supervisory judge’s improper conduct would require the trial judge to recuse himself or lead the public to question the trial judge’s impartiality.

The case provides important guidance to trial defense counsel concerning how to attempt to challenge a finding based on newly discovered evidence that comes to light after trial but before the CA acts.  Hull emphasized what the trial defense counsel didn’t do upon acquiring an unsworn statement from Ms. Smith alleging that the complaining witness had told her that the alleged rape was actually consensual:

Most important, the defense — having been informed of the SJA’s negative view of the defense request due to the vagueness of the information and related matters — did not ask the convening authority to order a post-trial Article 39(a) session for the purpose of compelling Ms. Smith or any other witnesses to appear and give sworn testimony. In the absence of a defense request for a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense, the SJA was not obligated to inform the convening authority as to the possibility of ordering such a hearing.